Workers' Compensation

Wednesday, May 8, 2019

New Penalties Proposed for Employers

Employers who fail to maintain or file reports of accidents, wages, benefits to taxes will be subject having their license suspended or revoked under a proposed rule. The proposed rule published by The Department of Labor and Workforce Development (NJDOL) will empower NJ to strictly enforce compliance including compliance with the workers compensation law, NJSA 34:15-1, et seq.

Trump's Gig Economy

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

The United States Department of Labor (DOL) published an opinion letter that would seem to exempt most so-called “gig economy” companies from federal wage and hour enforcement.

Fundamental Fairness

Workers’ Compensation matters are adversarial in nature and must furnish all parties with due process, a concept that embodies fundamental fairness[1]. There are two sides, at least, to very story, and the justice requires that the hearing official balance the facts to determine an appropriate result within the confines of the rule of law.

To ascertain the truth parties have the right to cross-examine witnesses. If that right is denied, the concept of fundamental fairness is suppressed.

A judge of compensation ordered stem cell medical treatment. Presented with evidence by way of expert opinion the judge was held to have denied the parties fundamental fairness by not allowing a medical expert to be cross-examined and failing to go on the record to memorialize the proceeding.

The issue arose in a workers’ compensation matter where the injured worker moved for stem cell medical treatment to relieve a shoulder injury. The compensation judge held an off the record conversation with the parties in chambers and spoke to the medical expert on the telephone. The compensation judge ruled, without taking medical testimony, that the proposed controversial treatment, not FDA approved, was approved.

The Appellate Division in reversing the compensation judge’s decision, stated:

“Where an important issue is discussed in chambers, “a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.” Klier v. Sordoni Skanska Const., 337 N.J. Super. 76, 86 (App. Div. 2001). We see no reason why the same caution should not apply where the motion for medical benefits is contested and a hearing is necessary.

“ We recognize that under the Act, “hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.” N.J.S.A. 34:15-56. We also have held that “[w]hile the technical rules of evidence may be relaxed at workmen’s compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights.” Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 95-96 (App. Div. 1986) (citing 3 Larson, The Law of Workmen’s Compensation, § 79.25(c) (1983)). This includes the right of cross-examination. See id. at 96; see also California v. Green, 399 U.S. 149, 158 (1970) (describing cross-examination as “the greatest legal engine ever invented for the discovery of truth” (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940))); State v. Castagna, 187 N.J. 293, 309 (2006) (emphasizing importance and efficacy of cross-examination).

"Crothall opposed stem cell treatment because it was not FDA approved. Dr. Krone’s testimony in chambers was not recorded and it was not taken under oath, yet it was found to be credible by the judge without affording Crothall the opportunity for cross-examination. We find that the procedures lacked fundamental fairness. We reverse the order and remand the motion for medical benefits to the workers compensation division for further proceedings consistent with this opinion. We do not express an opinion in support of or against petitioner’s claim for stem cell treatment in light of the inadequacy of this record.

Even though the rules of evidence may be relaxed in a workers' compensation proceeding, the concept of fundamental fairness requires that the parties have the right to cross examine expert witnesses and that a formal record be made of the proceedings, even if conducted in chambers.

[1] “Fair Trial,” Legal Information Institute, Cornell Law School. (Google Scholar)

Haggerty v. Crothall Service Group, Docket No. A-4478-17T4, 2019 WL 1975907 (Decided May 3, 2019) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

Insufficient Evidence: When "A Lot" is Not Enough

The Admissibility of Scientific Evidence: A New Evidentiary Standard

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Sunday, May 5, 2019

Correct Way to Contest a Lien

Attorneys should follow the correct procedures to contest a lien asserted by a workers’ compensation insurance carrier. A recent case provides instructions on the appropriate techniques.

Google Workers Complain of Retaliation #NotOKGoogle

The following post is shared from bloomberg.com

"Hundreds of Google staffers met on Friday and discussed what activists allege is a frequent consequence of criticizing the company: Retaliation. Two leaders of recent company protests said they’ve been mistreated by managers and collected similar stories from other workers at the world’s largest internet company.

US Wages Increase

Compensation costs for civilian workers increased 0.7 percent, seasonally adjusted, for the 3-month period ending in March 2019, the U.S. Bureau of Labor Statistics reported.

Federal opioid limitations: Good intentions, bad outcomes

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opioid prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more time to perform procedures. Procedures are more profitable for doctors and increase cost. Primary care doctors are often reluctant to prescribe opioids which puts more pressure on pain management doctors.

There are alternatives to opioids for pain management. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws.The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

Asbestos in Bowling Balls Results in $4.4 Million Verdict

A jury in California sided with the family of a former bowling alley owner who contracted mesothelioma after drilling asbestos-containing bowling balls for years.

House Appropriations Committee Releases Discretionary Labor-HHS Funding Bill

Worker safety and health is a focus of the just released House Committee on Appropriations. The Legislation increases discretionary funding by $11.7 billion from the 2019 level, investing in education, health care, medical research, and job training so people have a better chance at a better life; Bill funds firearm injury and mortality prevention research at CDC for first time in more than 20 years.

Workplace stress linked to heart disease

Today’s post is shared from sciencedaily.com

Work stress and impaired sleep are linked to a threefold higher risk of cardiovascular death in employees with hypertension. That's the finding of research published today in the European Journal of Preventive Cardiology, a journal of the European Society of Cardiology (ESC).

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

An employee exposed at work to flavoring ingredients including Diacetyl and Acetaldehyde, was awarded workers’ compensation benefits as a result of being diagnosed with colorectal cancer. The case is significant because the Court adopted scientific evidence that associated chemical exposure in the workplace to an increased risk of a malignancy based on expert testimony that by DNA testing, the exposed worker’s body could not detoxify from the hazardous chemical.

NJ Governor Murphy Signs Legislation Providing Information on Public Works Projects

Nj Governor Phil Murphy today signed S3129 into law, which will require the Commissioner of the Department of Labor and Workforce Development to create a list of labor organizations that represent workers who engage in public work projects.

When active shooter drills lead to workplace injuries

Today's guest author is Jon Rehm, Esquire of the Nebraska Bar.

The United States has one of the highest rates of gun violence in the developed world. Unfortunately the workplace is no sanctuary from this violence.

Employment Status Not Dependent on Exercising the Right to Control

Who an employee works for is determined by whether an employer may control the employee and not the exercise of the right. A NJ Appellate Court ruled in a dual employment issue that employment status is not dispositive by a single factor and that right to control an employee can be shared which establishes a dual employment situation.

EPA Asbestos Rule Announced: Still Leaves Deadly Carcinogen Legal

Today’s post is shared from ewg.com

The rule announced today by the US Environmental Protection Agency claiming to strengthen the agency’s ability to restrict certain uses of the notorious carcinogen asbestos falls short of what is required to fully protect public health, said The Environmental Working Group [EWG] legislative attorney Melanie Benesh.

CDC has requested comments for the feasibility of a mesothelioma registry

The National Institute for Occupational Safety and Health (NIOSH), within the Centers for Disease Control and Prevention (CDC), has announced the opening of a docket to obtain information on the feasibility of a registry designed to track mesothelioma cases in the United States, as well as recommendations on enrollment, data collection, confidentiality, and registry maintenance. The purpose of such a registry would be to collect information that could be used to develop and improve standards of care and to identify gaps in mesothelioma prevention and treatment.

Payment under section 20 invokes the exclusivity bar even if the employer is uninsured

A lump sum payment under Section 20 of the New Jersey Workers’ Compensation law is deemed to be an employee’s complete surrender of rights and therefore it is the exclusive remedy and bars a negligence action.

OSHA Cites New Jersey Contractor For Disregarding Fall Protection Requirements

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Brutus Construction Inc. for exposing employees to fall and other safety hazards at a worksite in Souderton, Pennsylvania. The company faces $181,699 in penalties.

NJ Monitors Wages: A Benefit for Injured Workers

NJ Labor Department’s recent crackdown on unscrupulous public works Contractors will help injured workers obtain the correct benefit amounts should they suffer a work-related accident. Workers’ compensation benefits are based on wages at the time of the injury.

The New Jersey Department of Labor and Workforce Development’s Wage and Hour Compliance Division has barred two public works contractors from doing business in the state for violations in other jurisdictions, heralding a tough and progressive new enforcement approach against dishonest contractors.

The cases against drywall contractor P& B Partitions and electrical contractor MJK Electrical Corp., both of West Berlin, were settled last month, with each contractor agreeing to a temporary revocation of their registration for violations outside prevailing wage law.

“As I have often said, working on public projects is a privilege, not a right,” said Labor Commissioner Robert Asaro-Angelo. “These cases signal a new and bold effort to ensure that privilege is extended only to contractors who follow our laws, and pertinent laws in other jurisdictions.” P & B Partitions’ two-year revocation follows a civil action in Massachusetts in which the company allegedly failed to pay proper overtime, resulting in $158,139 in back wages and $42,350 in penalties as a result of a ULDOL investigation under the Fair Labor Standards Act.

The case was a consequence of a Memorandum of Cooperation signed by Asaro-Angelo and USDOL officials to solidify cooperation between the two agencies and enhance the enforcement capabilities of state and federal labor laws. In the case of MJK Electrical, the Labor Department’s enforcement action followed a guilty plea by the firm’s vice president, George Peltz, to federal tax evasion, failing to pay payroll taxes, theft from an employee benefits plan, and unlawful payments to a union official.

The company, which indicated its intent to buy out Peltz, agreed to a three-year registration revocation, ending in March of 2022. New Jersey already has one of the strongest prevailing wage laws in the country. The Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48, et seq., requires all contractors, including named subcontractors, to register with the Labor Department before submitting price proposals or engaging in public works contracts exceeding the prevailing wage threshold of $15,444 for municipalities and $2,000 for non-municipal work.

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Wednesday, April 10, 2019

An Employer Must Provide Accommodation for Off-Hours Use of Medical Marijuana

An employee licensed to use medical marijuana under the New Jersey Compassionate Use Medical Marijuana Act may proceed with a the New Jersey Law Against Discrimination (LAD) action ageist his employer for unlawful termination.

Judicial Enforcement is Limited in Workers’ Compensation Claims

The enforcement provisions of the Workers’ Compensation Act [WCA] are strictly limited. Judges of Compensation are mandated to follow the statute, regulations and the specific facts in addressing enforcement issues.

US FDA Moves to Further Regulate Marijuana Products

US Food and Drug Administration [FDA] announced a public hearing to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds.

Shift Work Reportedly Causally Related to Increase Risk of Diabetes and Heart Disease

Shift work has been shown to be associated with heart and metabolic disorders. A recently published study reports exactly how shift work is causally related in the long-term to both diabetes and heart disease. Workers’ Compensation claims may increase for such diseases going forward for injured workers seeking benefits for such medical conditions.

A Surge in Groundskeeper/Landscaper Cancer Claims Foreseeable

The second jury verdict that occurred in California against Monsanto/Bayer for cancer arising out of exposure to Roundup that contained glyphosate may foreshadow a surge in workers’ compensation cancer claims for groundskeepers and landscapers.

Workers Who Are Non-Smokers Suffer from Chronic Obstructive Pulmonary Disease [COPD]

Approximately 25% of adults with chronic obstructive pulmonary disease (COPD) have never smoked, and workplace exposures likely contribute to much of their disease. A recent report from the Centers for Disease Control and Prevention [CDC] that 24% of workers who suffer from COPD never smoked. Among these persons, 26%–53% of COPD can be attributed to workplace exposures, including dust, fumes, gases, vapors, and secondhand smoke exposure.

Trump Administration Proposes Elimination of the Reverse Offset

The Trump Administration in its proposed FY 2020 Budget has proposed elimination of the workers’ compensation reverse offset. The elimination will act as a cost saving measure and will level the playing field for all workers’ compensation system throughout the United States.

Failure to Attend Employer Exam is Not Insubordination

A municipal who failed to attend a workers’ compensation medical appointment scheduled by his employer cannot be charged with subordination. N.J.A.C. 4A:2-2.3(a)(2), N.J.A.C. 2-2.3(a)(12).

Horseplay Is Not an Intentional Tort

Pranks at work may be considered “arising out of the course of employment” and compensable events. Those same injuries are not considered intentional events and would not give rise to cause a civil action against an employer for damages for pain and suffering.

Forklift Operator Not A “Special Employee”

Special equipment operators often appear to work for two employers simultaneously. The facade of dual employment may not meet the criteria for being a shared employee or “special employee.”

NJ Legislature Bans Asbestos

Both houses of the New Jersey Legislature has made history by passing a bill to ban the sale of asbestos products in the State. The legislation awaits the Governor’s signature. [Editorial Note: A4416 NJ Leg Session 2018-19 was signed by the Governor and enacted, Approved P.L. 2019, c.114 on May 10, 2019 - Click Here for Pamphlet Law].

The Oklahoma Opioid Settlement: A Promising Impact on Workers’ Compensation

The first major settlement in the nation’s massive litigation effort against the manufacturers of opioids may present an outline of how the effort will affect workers’ compensation programs throughout the United States. The settlement outlines a substantial contribution to assist those individuals negatively affected by opioid addiction.

The Oklahoma Attorney general yesterday announced an historical settlement in the pending state’s opioid litigation. Attorney General Mike Hunter and Oklahoma State University leaders announced an historic settlement with Purdue Pharma that will establish a nearly $200 million endowment at the Oklahoma State University’s Center for Wellness and Recovery, which will go toward treating the ongoing addiction epidemic nationwide.

“‘The addiction crisis facing our state and nation is a clear and present danger,’ Attorney General Hunter said. ‘Last year alone, out of the more than 3,000 Oklahomans admitted to the hospital for a non-fatal overdose, 80 percent involved a prescription opioid medication. Additionally, nearly 50 percent of Oklahomans who died from a drug overdose in 2018 were attributed to a pharmaceutical drug. Deploying the money from this settlement immediately allows us to decisively treat addiction illness and save lives.”

Joseph F. Rice, Esq., of Motley Rice LLC, co-lead counsel and a member of the Plaintiffs’ Executive Committee for the National Prescription Opiate Multidistrict Litigation, coordinated in the Northern District of Ohio, commented, “This is a significant step in the effort of the governmental entities around the country to address the opioid epidemic. Purdue Pharma and the Sackler family, by entering into this settlement, have taken a step forward to address what has been alleged as decades of misinformation, inappropriate marketing and efforts to grow the use of opioids, some of the most addictive narcotic drugs in our society.”

The US Centers for Disease Control [CDC] has reported that from 1999-2017 almost 400,000 people died from an overdose involving any opioids, including prescription and illicit opioids. On the average, 130 Americans dies every day from an opioid overdose.

Treatment of work related injuries and the resulting pain have produced an epidemic of opioid related addiction and fatalities. The CDC issued guidelines in 2016 for the prescription of opioids. New safety warnings were also added to all prescription opioid medications. State laws were enacted to add restrictions and limitation on opioid prescriptions. The NJ Attorney General has filed a lawsuit against a subsidiary of NJ based Johnson and Johnson seeking reimbursement for workers' compensation costs resulting from deceptive opioid advertising. At least 33 states have sued the opioid manufacturers. This is a significant action as Johnson and Johnson is a major player in New Jersey's economy.

An unintended consequence of the restrictions placed on the prescription of opioids has been the inability of injured workers to obtain adequate pain relief. Suicide rates have increased, John Heubusch, a cancer patient, writing in the Washington Post stated, “ We have reached the point where doctors believe the next prescription they write for opioids to treat chronic pain might be their last. In my own case, I’ve had to undergo countless unsuccessful procedures and near superhuman efforts to be granted barely enough medication to try to live a normal life. Even those doctors with the courage to prescribe them for chronic pain sufferers are finding the hurdles established by federal and state reporting requirements so onerous that they are simply turning patients away.”…..”Opioid prescriptions have shrunk substantially, but Washington’s goal now is to cut their number by a further one-third. In a bitter irony, opioid overdose deaths continue to hover at an all-time high. Many chronic pain patients, denied prescriptions, are self-medicating on the street, using synthetic drugs such as fentanyl, 50 times more powerful than heroin. There, danger and overdose lurk around every corner. Even worse, some who have lost all hope for pain relief are choosing to end their pain by ending it all. The risk of suicide among patients with chronic pain is twice that of those without it."

The Oklahoma settlement is an staring effort to the resolution of the opioid epidemic and the its consequences. Hopefully, this will bring those responsible for the opioid problem to the table to discuss sensible solutions so that injured workers’ can be provided medical care to relieve their pain without resulting addiction and death. This promising future would economically benefit employers, workers’ compensation insurance companies, and public entities that medically treat workplace injuries. All stakeholders involved in the workers’ compensation system hopefully can look to a more promising future.

See also:
New York Sues Sackler Family Members and Drug Distributors (NY Times 3/29/2019)
New York State 1st Amended Complaint (3/28/2019)

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Tuesday, March 26, 2019

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

The NJ Supreme Court has held that the provision of medical treatment does not equate to a "reasonable accommodation", therefore an employee cannot claim under the Law Against Discrimination [LAD] that failure to provide medical care was actionable. The provision of medical treatment is an exclusive remedy of the Workers’ Compensation Act.

Bard Hernia Mesh Litigation Heads for Trial

Trial dates have now been scheduled in the C.R. Baird hernia mesh litigation pending in Rhode Island state court. The first of over 7,000 cases will be advancing in the courtroom with the first trial commencing in July 15, 2019. Thereafter, 5 cases per month will be listed for hearing.

Employer Held Liable for Failure to Protect an Employee from Fatal Workplace Violence

The US Occupational Safety and Health Review Commission (OSHRC) has upheld safety violations against an employer for the death of an employee caused by workplace violence. The employee died from nine stab wounds received on the front lawn of a patient’s home following a home visit in December 2012.

BILL INTRODUCED TO BAN ASBESTOS NOW

Oregon’s Senator Jeff Merkley, along with Congresswoman Suzanne Bonamici (D-OR), Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), and Congresswoman Elissa Slotkin (D-MI), today introduced the Alan Reinstein Ban Asbestos Now Act of 2019, legislation that would ban the mining, importation, use, and distribution in commerce of asbestos, a known carcinogen, and any asbestos-containing mixtures in the United States of America.

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