Workers' Compensation: Search results for employment status

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Thursday, August 7, 2014

How The 4-Day Workweek Could Revolutionize American Work Culture (WATCH)

Today's post was shared by Work Org and Stress and comes from www.huffingtonpost.com

As work-related stress levels are on the rise and burnout is increasingly taking a toll on employees, companies are searching for new and innovative ways to keep their teams feeling balanced, motivated and productive. While some employers allow workers to log in from home or enjoy shortened “summer Friday” hours, others are now turning to the four-day workweek model to help employees strike a better work-life balance.
DigitalRelevance’s director of digital media relations Ashley Sherman and Beholder’s chief operating officer Emilia Andrews joined HuffPost Live host Caroline Modarressy-Tehrani today to discuss this rethinking of traditional office hours and the benefits it offers both employees and employers.
“I’m less worried about all the things that I’m not doing in my personal life during those days,” said Sherman of the benefits of a four-day workweek. “I know that I have Friday to do that, so I can really focus and center in on what I need to get done for work those four days that I’m there.”
Andrews had a similarly positive experience in shifting to the condensed workweek model at her company.
“Communication went up exponentially," she said. “People were there with a focus, knew what needed to be done, and were able to get it done… I was smiling more. I was happier. I was excited to see the staff when we came back on Monday… We really were all just more excited and more...

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Wednesday, May 27, 2015

Pending Before the NJ Supreme Court

A-89-13 Estate of Myroslava Kotsovska v. Saul Liebman (073861)
Should the trial court have transferred this wrongful death and survival action to the Division of Workers' Compensation for a determination of the decedent's employment status where defendant raised the workers' compensation bar as an affirmative defense?
Certification granted: 5/19/14
Posted: 5/20/14
Argued: 3/16/15

Case below:

Superior Court of New Jersey,

Appellate Division.

ESTATE OF Myroslava KOTSOVSKA, by Olena KOTSOVSKA, Administrator, Plaintiff–Respondent,

Saul LIEBMAN, Defendant–Appellant.

Argued March 20, 2013. Decided Dec. 26, 2013.

Background: Estate of driver's home health aid filed wrongful death action against driver, stemming from accident in which driver accelerated vehicle while parking, hitting home health aid. Following jury trial, the Superior Court, Law Division, Union County, 2012 WL 3965151, determined home health aid was independent contractor, found in favor of estate, and denied driver's motion for new trial. Driver appealed.

Holdings: The Superior Court, Appellate Division, Accurso, J.A.D., held that:

(1) Division of Workers' Compensation was proper forum for resolution of whether home health aid was driver's employee;

(2) jury instruction as to whether home health aid was employee or independent contractor did not adequately convey the law;

(3) taking judicial notice that person would suffer pain if leg was traumatically amputated while conscious was harmless error; and

(4) damages would be preserved pending remand.

Affirmed in part, reversed in part, and remanded.

Friday, February 14, 2020

Restoring Overtime

Members of Make the Road New Jersey, the immigrant and workers’ rights organization, delivered 500 letters from New Jersey workers to Gov. Phil Murphy today, urging him to take action to restore overtime rights for thousands of New Jersey workers.

RICO Claim Alleging Underlying Workers Compensation Fraud Dismissed

A Federal Judge dismissed a case where the alleged misrepresentation of employment status in an underlying State court workers’ compensation case was pleaded as an alleged basis of a RICO (Racketeer Influenced and Corrupt Organizations Act) action18 U.S.C. § 1961(c). The court held that a federal racketeering action, filed as a RICO action arising out of a workers’ compensation claim utilizing mail and wire, must demonstrate multiple verifiable activity of facts demonstrating fraudulent action in order to sustain the burden of proof.

The Court reasoned:

"It is well established that “misrepresentations of the law are not actionable as fraud, including under the mail and wire fraud statutes because statements of the law are considered merely opinions and may not be relied upon absent special circumstances.” Sosa v. DIRECTV, Inc., 437 F.3d 616, 621 (9th Cir.2006). Therefore, Plaintiff’s allegations that the Macedos Defendants committed wire and mail fraud by virtue of falsely claiming that Defendant Jose Moreira was an employee of the Macedos Construction Co., Inc. in order obtain Workers’ Compensation benefits is not actionable as mail and wire fraud."

Virginia Sur. Co., Inc. v. Macedo, Slip Copy-Unpublished, 2009 WL 3230909, D.N.J., September 30, 2009 (NO. CIV.A.08-5586JAG)

For more on RICO actions and workers' compensation click here.

Wednesday, September 30, 2015

Adult Club Dancer Is An Employee

An adult club dancer was held to be an employee in a recent NJ workers' compensation decision. The Court relied upon both, the Right to Control Test and the Relative Nature of the Work Test in making its determination of employment status.

The Honorable E. Elaine Voyles, Judge of Compensation, held:

"Although the parties were unable to enter into any stipulations, many of the relevant facts are not disputed. The Petitioner was employed as a dancer at the time of her accident. The Respondent, is an adult club wherein Petitioner, and other dancers, entertained patrons. Both parties agreed that Petitioner was required to fill out an application (P1) and audition for her position. Both parties agreed that Petitioner's schedule changed on a weekly basis and that the dancers could set their own schedule. There was further agreement that Petitioner was not paid a salary and that she worked for tips. According to the testimony of both sides, Petitioner did not have to share her tips except for when she performed a "couch dance". The cost for a "couch dance" was $20 of which $15 was given to the dancer and five dollars was retained by the Respondent.

"Petitioner testified that once the weekly schedule was set the dancers were required to appear at their designated times. She further testified that she could not leave the facility between dances and that she was required to finish out her shift.

****

"In assessing the degree of Respondent's right to exercise control over the Petitioner, the Court must examine the arrangements made between the Petitioner and Respondent. Despite the fact that Petitioner set her own hours I find the Respondent exercised a substantial degree of control over Petitioner. Petitioner was required to converse with patrons and perform both pole and couch dances. Petitioner was not free to come and go as she pleased. Once she arrived for her shift she was required to stay until that shift was completed. Dancers were chastised if they were found not to be entertaining the patrons.

****

"The court further finds that Petitioner was economically dependent upon the Respondent. Petitioner testified that she worked an average of five shifts per week and that the shifts averaged 8- 12 hours in duration. Additionally, Petitioner testified that her only source of income at the time of her assault was the money she earned working for the Respondent. As stated previously the Court found the testimony of the petitioner to be credible.

Colvin v Coconuts 2013-16306 NJ Division of Workers' Compensation

Decided July 14, 2014 - Posted by NJ DWC September 29, 2015

Wednesday, June 6, 2018

US Supreme Court - NY State Permitted to Close State Fund

The US Supreme Court [SCOTUS] has declined to review the challenge by multiple insurance carriers to the closure of the New York State Insurance Fund. Consistent with a national trend to terminate Second Injury Funds as being obsolete, economically impractical, and no longer warranted, SCOTUS, by declining the Petition for a writ of certiorari, validated the methodology employed by the State of New York to implement the termination of the Fund.

Top NJ Workers' Compensation Decisions of 2019

It has been an active 2019 for workers’ compensation decisions in New Jersey. There have been two NJ Supreme Court opinions and three reported Appellate Court opinions that are noteworthy. From a review of the pending docket the NJ Supreme Court will be reviewing at least 3 very significant issues in 2020 invoking workers’ compensation issues.

Court Rules that Telecommuting Could Be Reasonable Accommodation under the ADA

Today's post is authored by John Geaney, a member of the NJ Bar and a Shareholder at Capehart Scatchard and shared from linkedin.com

Telecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA. A recent Sixth Circuit Court of Appeals case, EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6 Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford. Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence. Some days she could not drive to work or stand up from her desk without potentially soiling herself. She took intermittent leave when severe symptoms occurred. In 2005, her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis. The company did not view the trial period as a success. She continued to work occasionally from home doing remote work,...

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Monday, November 18, 2019

NJ Supreme Court to Review Application of Exclusivity Rule Between Social Remedial Legislation Acts

The NJ Supreme Court will review two social remedial legislative acts to determine whether the Exclusivity Rule is applicable. The workplace legislation is the Law Against Discrimination [LAD] and the Workers’ Compensation Act [WCA]. The Court will determine whether a LAD claim is barred by the exclusive remedy of the WCA. Mary Richter, Plaintiff-Respondent, v. Oakland Board of Education, C-234 Sept.Term 2019, 2019 WL 5847242, Petition for Certification Granted NOVEMBER 4, 2019

NJ Medical Payments Stabilize - But Why?

A recent study by an insurance based data organization has reported that NJ is experiencing a leveling of medical costs. The real question is "why?" Are declining medical benefits caused by fewer claims based on a shift of challenging employment status in the shared economy or a shift of medical costs under Obamacare to the private sector?

Medical payments per workers’ compensation claim in New Jersey were stable from 2010 to 2013, in contrast to rapid growth in the 2008 to 2010 period, according to a recent study by the Workers Compensation Research Institute (WCRI).

The report, CompScope™ Medical Benchmarks for New Jersey, 16th Edition, indicates results for New Jersey differed from those of other states WCRI studied, many of which experienced moderate to rapid growth in medical payments per claim.

The study found the following to be contributing factors:

Increased use of networks, which may be linked to a decrease in prices paid for non hospital care. In recent years, two-thirds of total medical payments came from non hospital services.

Flat or decreasing trends in utilization of many non hospital services.

Slower growth in hospital outpatient payments per service.

A continued decrease in the percentage of claims that had hospital inpatient care.

“From 2010 to 2013, medical payments per claim with more than seven days of lost time rose less than 2 percent per year in New Jersey,” said Ramona Tanabe, executive vice president and counsel for WCRI. “From 2008 to 2010, payments rose nearly 10 percent per year.”

WCRI studied medical payments, prices, and utilization in 17 states, including New Jersey, looking at claim experience through 2014 on injuries that occurred in 2013 or earlier. WCRI’s CompScope™ Medical Benchmark studies compare metrics of medical costs and care from state to state and across time.

Study available for purchase: http://www.wcrinet.org/studies/public/books/csmed16_NJ_book.html.

Thursday, April 23, 2015

Equitable Relief Permits Reinstatement of Dismissed Workers’ Compensation Case

The principles of equitable relief were invoked by a NJ Appellate Court to restore a dismissed workers’ compensation case to the active calendar.

The Appellate Court, reviewing the facts, considered that the original dismissal, was based on “omissions and misrepresentations” of his prior attorney and the "Petitioner's dilemma was not caused by his own dereliction or ambivalence."

The Appellate Court stated:

Although N.J.S.A. 34:15–54 does not expressly create an exception to the oneyear

requirement for filing a motion for reinstatement, our courts have recognized

that compensation judges possess the inherent power to excuse the one-year time

bar upon the grounds set forth in Rule 4:50–1. Beese v. First Nat'l Stores, 52

N.J. 196, 200 (1968) ; see also Estelle v. Bd. of Educ. of Red Bank, 14 N.J. 156,

261 (1954); Stone v. Dugan Bros. of N.J., 1 N.J.Super. 13, 16–17 (App.Div.1948) .

Relevant here is consideration of Rule 4:50–1(f), which provides that a court may

vacate a judgment for “any other reason justifying relief from the operation of

the judgment or order.”

When considering relief under that basis, “[n]o categorization can be made of

the situations which would warrant redress under subsection (f) .... the very essence

of (f) is its capacity for relief in exceptional situations. And in such

exceptional cases its boundaries are as expansive as the need to achieve equity

and justice.” Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966) (citation omitted).

Kost v GPU Energy, Docket No. A-0858-13T3 (NJ App Div 2015)

Monday, December 24, 2012

Electronic Health Records: Occupational Information and Demographics

Report: IOM

With the widespread adoption of electronic health records (EHRs), the Institute of Medicine has concluded that incorporating patients’ occupational information into EHRs could lead to more informed clinical diagnosis and treatment plans as well as more effective policies, interventions, and prevention strategies to improve the overall health of the working population. However, this potential will only be realized if providers have an incentive to collect and record information on patient occupation and industry.

"Demographics are statistical characteristics of a population. These types of data are used widely in public opinion polling andmarketing. Commonly examined demographics include gender, age, ethnicity, knowledge of languages, disabilities, mobility, home ownership, employment status, and even location. Demographic trends describe the historical changes in demographics in a population over time (for example, the average age of a population may increase or decrease over time). Both distributions and trends of values within a demographic variable are of interest. Demographics are very essential about the population of a region and the culture of the people there."

Between now and January 14, you have the opportunity to express your support for including occupation and industry codes in the federal rules defining "meaningful use" of EHRs. If you choose to do so, please consider telling the Office of the National Coordinator for Health IT (ONC) that you favor the addition of occupation and industry codes and the retention of demographics as incentivized objectives in the definition of meaningful use.

These changes will not only address the meaningful use goal of improving quality, safety, and reducing health disparities but also serve to improve the goal of improving population and public health by securing the data needed to improve the ongoing, systematic collection, analysis, and interpretation of occupational injury and illness.

Links for submitting your comments and additional background information are included below.

COMMENT

Request for Comment Regarding the Stage 3 Definition of Meaningful Use
http://www.healthit.gov/buzz-blog/meaningful-use/set-stage-meaningful-stage-3/

Stage 3 Definition: Objectives, Recommendations, and Questions/Comments (see Page 6)
http://www.healthit.gov/sites/default/files/hitpc_stage3_rfc_final.pdf

Comment Submission
http://www.regulations.gov/#!docketDetail;D=HHS-OS-2012-0007

BACKGROUND

Included as part of the American Reinvestment & Recovery Act (ARRA), the "Health Information Technology for Economic and Clinical Health" (HITECH) Act promotes the meaningful use of interoperable electronic health records (EHRs) throughout the United States health care delivery system as a critical national goal. This effort is led by the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health IT (ONC).

CMS grants an incentive payment to Eligible Professionals (EPs) or Eligible Hospitals (EHs) who can demonstrate that they have engaged in efforts to adopt, implement or upgrade certified EHR technology. In order to encourage widespread EHR adoption, promote innovation, and avoid imposing excessive burden on healthcare providers, meaningful use has been introduced in stages. Rule making defining meaningful use for stages 1 and 2 has already been finalized. On 11/26/2012, ONC published a notice in the Federal Register requesting comments on the draft recommendations for meaningful use stage 3. The comment period will close on 01/14/2013.

The Health Information Technology (HIT) Policy Committee has proposed adding occupation and industry codes and eliminated demographics as incentivized objectives. The addition of occupation and industry codes is welcome, but these data will have little value for computing health statistics if demographics are missing. Occupation and industry codes should be added and demographics should be retained.

IOM: Incorporating Occupational Information in Electronic Health Records: Letter Report http://www.iom.edu/Reports/2011/Incorporating-Occupational-Information-in-Electronic-Health-Records-Letter-Report.aspx

CDC: Introduction to Meaningful Use
http://www.cdc.gov/ehrmeaningfuluse/introduction.html

Health Affairs: 'Meaningful Use' Of Electronic Health Records
http://www.healthaffairs.org/healthpolicybriefs/brief.php?brief_id=24

NEJM: The "Meaningful Use" Regulation for Electronic Health Records
http://www.nejm.org/doi/full/10.1056/NEJMp1006114

Wikipedia: Meaningful Use
http://en.wikipedia.org/wiki/Electronic_health_record#Meaningful_use

Read more about "Electronic Health Records" and Workers' Compensation

NIOSH Seeks Occupational History for Inclusion in Electronic Health ...

Jul 05, 2012

Written comments submitted to the Docket will be used to inform NIOSH with its planning and activities in response to the 2011 letter report “Incorporating Occupational Information in Electronic Health Records” written by the ...

http://workers-compensation.blogspot.com/

Workers' Compensation: Now Available On-Line: Complete Letter ...

Oct 05, 2011

David H. Wegman, Catharyn T. Liverman, Andrea M. Schultz, and Larisa M. Strawbridge, Editors; Committee on Occupational Information and Electronic Health Records; Institute of Medicine. 84 pages PAPERBACK $35 ...

http://workers-compensation.blogspot.com/

The Need to Incorporate Occupational Histories Into Electronic

Oct 04, 2011

The use of electronic health records (EHRs) has increased rapidly since the passage of the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act. Incorporating patients' occupational information ...

http://workers-compensation.blogspot.com/

Workers' Compensation: The New Economic Recovery Act Fails to ...

Feb 14, 2009

The new economic recovery package includes an appropriation of $19 Billion for the expansion of electronic health records [EHR] by funding intellectual technology. The legislation fails to include an essential prohibition on ...

http://workers-compensation.blogspot.com/

Sunday, June 6, 2021

Contractual Choice of Law Held Governing

The choice of law embodied in a contract is governing a recent NJ Appellate Division ruled.

The Plot Thickens As Uber Turns to Leasing Vehicles

Uber is about to change "the rules" yet again by now leasing vehicles to its drivers. While there is great uncertainty of how "employment status" will be interpreted going forward in the new sharing economy, one thing is for certain, the concept will continue to evolve and redefine the traditional workplace.

The 9 Most Important Victories for Workers in 2014

Today's post was shared by CAAA and comes from inthesetimes.com

These are tough times for American workers. But the news in 2014 wasn't all bad. (Steve Rhodes / Flickr)
The mainstream press often files workers’ stories between corporate gossip in the “business” or “money” sections. But the efforts of working people to organize for their common interests—as well as the efforts of the 1 percent to keep a lid on things—frequently made front-page news this year.
Much has been made of the incredibly hostile climate for labor over the past few decades. Yet this past year, workers still organized on shop floors, went out on strike, marched in the street and shuffled into courthouses to hold their employers accountable, and campaigned hard for those who earned (or, often enough, didn’t earn) their vote. Legislators, meanwhile, tarried on with their anti-worker “right-to-work” laws, and union busters busted up unions. But if state legislatures and the U.S. Supreme Court were harsh on workers, the National Labor Relations Board (NLRB) was refreshingly helpful, passing down several rulings that made organizing easier and wage-theft harder.
Whether it was fast-food and retail workers demanding respect and better pay in record numbers, cities across the country raising their minimum wage under public pressure, or student athletes gaining recognition as employees of their universities, the labor movement has seen some important—and, at times, unexpected—victories this past...

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Friday, January 22, 2016

Chief Judge of NJ Division of Workers' Compensation Announces New Appointments

New administrative appointments have been announced by Hon. Russell Wojtenko, Jr., Director and Chief Judge of Compensation of the NJ Division of Workers' Compensation:

"I am happy to announce, with the approval and consent of Harold Wirths, Commissioner of Labor and Workforce Development, effective Monday, January 4, 2016, Judges Emille Cox and Philip Tornetta were appointed Administrative Supervisory Judges for the Division of Workers' Compensation.

NJ Labor Department, USDOL Ink Agreement to Work Together to Protect Businesses and End Exploitation of Workers through Misclassification

The New Jersey Department of Labor and Workforce Development and the U.S Department of Labor pledged a historic new level of cooperation to protect New Jersey’s economy by signing an agreement on August 10, 2018 to work together to end illegal employee misclassification.

Google to Make Security Guards Employees, Rather Than Contractors

Looks like Google is searching for the safe side of employment status. Today's post was shared by Steven Greenhouse and comes from blogs.wsj.com

In a move that could reverberate around Silicon Valley, Google plans to hire more than 200 security guards as its own employees, rather than through an outside contractor.

The guards will be eligible for the same benefits as other Googlers, including health insurance, retirement benefits, on-site medical services, leave for new parents and more.

The move comes amid rising concerns about income disparities in the San Francisco Bay Area. A think tank with ties to organized labor issued a report in August highlighting the differences in pay, benefits and working conditions between tech-company employees and service workers such as security guards, janitors and landscapers who primarily work for outside contractors.

Google’s moves on social issues can be influential. Several other Silicon Valley heavyweights, including Facebook and Apple , released details on the gender and racial composition of their workforces after Google did so in June.

“Building an in-house security team is something we are excited to do,” said a Google spokeswoman in a statement. “A year ago we in-sourced the Google security operations center and we are looking forward to making these valued positions both full- and part-time Google employees.”

Google said its contractor providing security guards, Security Industry Specialists, Inc., will continue to work with the search giant...

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Thursday, December 11, 2014

Walmart Illegally Punished Workers, Judge Rules

A National Labor Relations Board judge ruled that Walmart managers in California had illegally disciplined employees for going on strike and unlawfully threatened to close a store if many of its employees joined a group demanding higher wages.
In a decision made public on Wednesday, Geoffrey Carter, an N.L.R.B. administrative law judge, also found that a Walmart manager had illegally intimidated workers by saying, “If it were up to me, I’d shoot the union.” In addition, the judge said it was unlawful for Walmart managers to tell employees that co-workers returning from a one-day strike would be looking for a new job.
Our Walmart, a union-backed group of Walmart employees, filed the complaint with the labor board, asserting that officials at Walmart stores in Placerville and Richmond, Calif., had illegally intimidated workers.
Kory Lundberg, a Walmart spokesman, said in a statement: “We do not agree with some of the administrative law judge’s conclusions.” The company said it would appeal parts of the ruling to the full labor board in Washington.
Walmart has a long history of vigorously battling unionization efforts.
Our Walmart is not a union but is affiliated with the United Food and Commercial Workers union and has mounted a string of protests against Walmart over the last three years. On Black Friday, Our Walmart sponsored protests at more than a thousand Walmart stores, calling for a $15 base wage, more full-time jobs and an end to what...

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