An employee leased to another company [ER], ie. From a placement agency [PA], does not have the rights and benefits available to a regular employee. A recent case illustrates how the leased employee is prohibited from seeking an award for damages because of an accident at work.
Showing posts sorted by date for query exclusivity. Sort by relevance Show all posts
Showing posts sorted by date for query exclusivity. Sort by relevance Show all posts
Friday, May 10, 2019
Monday, April 15, 2019
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.
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.
Saturday, February 10, 2018
Just Published: 2018 Update - Gelman on Workers' Compensation Law
Jon Gelman’s newly revised and updated 2018 treatise on Workers’ Compensation Law is now available from by West Group of Egan, MN within the next few weeks. The treatise is the most complete work available on NJ Workers’ Compensation law and integrated with WESTLAW™, the "most preferred online legal research service.'"
Thursday, December 14, 2017
Exclusivity Rule: Police Officer Hired to Direct Traffic Was a Special Employee-Unpublished Opinion
A municipal police officer who was hired by a contractor to direct traffic at a construction site was determined to be a “special employee” and barred from suing a co-worker of the construction company. The NJ Appellate Court has held, in an unpublished opinion*, the “Exclusivity Rule” barred the institution of a civil action against a co-worker.
Thursday, March 10, 2016
NJ Company Fined $52,000 by OSHA for Unprotected Trench
Employer name: D.S. Meyer Enterprises LLC, 34 Maple Ave. Waldwick, New Jersey
Site: 45 Waterview Blvd., Parsippany, New Jersey
Citations issued: On Feb. 29, 2016, the U.S. Department of Labor Occupational Safety and Health Administration's Parsippany Area Office issued citations for five serious and one willful violation.
Friday, July 10, 2015
Injured worker has no standing in a subrogation claim
An injured worker has no standing in a subrogation action initiated by a tby the insurance carrier/employer against the ultimate wrongdoer where the injured worker takes no action to pursue a personal injury action against the third party. The injured worker, who fails to file an action, has no right to interfere with the subrogation claim and need not be notified of the settlement.
A NJ Appellate Court ruled that the failure of the injured worker to proactively initiate a third party claim prohibited the employee from involvement/recovery in the subrogation action.
A-4731-13T1
INAAM ELHELOU, ET AL. VS. LIPINSKI OUTDOOR SERVICES, ET AL.
VS. ALL STATE POWER WASH
July 9, 2015
2015 WL 4112210 (N.J.Super.A.D.)
A NJ Appellate Court ruled that the failure of the injured worker to proactively initiate a third party claim prohibited the employee from involvement/recovery in the subrogation action.
A-4731-13T1
INAAM ELHELOU, ET AL. VS. LIPINSKI OUTDOOR SERVICES, ET AL.
VS. ALL STATE POWER WASH
July 9, 2015
2015 WL 4112210 (N.J.Super.A.D.)
Wednesday, June 17, 2015
NJ Supreme Court: Superior Court has jurisdiction to determine employment status
The NJ Supreme Court ruled that the NJ Division of Workers' Compensation does not have exclusive jurisdiction in determining employment status. In reversing the decision of the Appellate Decision, the NJ Supreme Court held that when a claim petition is not filed with the NJ Division of Workers' Compensation, the Superior Court has exclusive jurisdiction over who is an employee versus independent contractor.
"We conclude that when, as here, there is a genuine dispute regarding the worker's employment status, and the plaintiff elects to file a complaint only in the Law Division of the Superior Court, the Superior Court has concurrent jurisdiction to resolve the dispute."
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:
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:
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.
Wednesday, May 6, 2015
Professor John F Burton Jr: Illinois Proposed Changes Are Obectionable
The former chair of the 1972 National Commission on Workers' Compensation told the Illinois legislature yesterday that the proposed changes to the Illinois Workers' Compensation Act will degrade the system and reduce benefits to injured workers. Profession Emeritis John F. Burton, Jr., yesterday presented a statement to the Committee of the Whole before the Illinois House of Representatives.
 |
| Professor John F. Burton Jr. |
Thursday, April 23, 2015
US FDA: Designation for CRS-207 in Mesothelioma Treatment
Today's post is shared from finance.yahoo.com/news
Aduro Biotech, Inc. today announced that the Office of Orphan Product Development of the U.S. Food and Drug Administration (FDA) has granted orphan drug designation to CRS-207, a novel immuno-oncology product candidate, for the treatment of mesothelioma. This designation potentially allows Aduro seven years of limited marketing exclusivity in the United States if it is the first to obtain FDA marketing approval for mesothelioma, and qualifies the company for grant funding to offset the cost of clinical testing as well as tax credits for certain research and a waiver of the Biologics License Application user fee. The FDA previously granted orphan designation to CRS-207 and GVAX Pancreas for the treatment of pancreatic cancer.
“This is an important step for Aduro as we continue to develop CRS-207 for this very difficult to treat cancer,” said Dirk Brockstedt, Ph.D., senior vice president of research and development at Aduro. “We believe the combination of CRS-207 together with chemotherapy may offer the promise of a potential new therapeutic regimen for patients suffering from mesothelioma. Importantly, we plan to report additional data from the ongoing Phase 1b study later this year.”
Click here to read the entire article
Aduro Biotech, Inc. today announced that the Office of Orphan Product Development of the U.S. Food and Drug Administration (FDA) has granted orphan drug designation to CRS-207, a novel immuno-oncology product candidate, for the treatment of mesothelioma. This designation potentially allows Aduro seven years of limited marketing exclusivity in the United States if it is the first to obtain FDA marketing approval for mesothelioma, and qualifies the company for grant funding to offset the cost of clinical testing as well as tax credits for certain research and a waiver of the Biologics License Application user fee. The FDA previously granted orphan designation to CRS-207 and GVAX Pancreas for the treatment of pancreatic cancer.
“This is an important step for Aduro as we continue to develop CRS-207 for this very difficult to treat cancer,” said Dirk Brockstedt, Ph.D., senior vice president of research and development at Aduro. “We believe the combination of CRS-207 together with chemotherapy may offer the promise of a potential new therapeutic regimen for patients suffering from mesothelioma. Importantly, we plan to report additional data from the ongoing Phase 1b study later this year.”
Click here to read the entire article
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Friday, November 28, 2014
Rules of Dismissal Governed by Equitable Principles
In reversing a dismissal in Workers’
Compensation a NJ Court applied equitable principles as well as the guidance of
the rules of the civil justice system. The inability of counsel to appear for
what the Appellate Court deemed to be justifiable cause (conflicted with his
obligation to serve as a court-appointed arbitrator in another court), resulted
in a reversal of the dismissal.
“No petition shall be dismissed for want of
prosecution or for failure to form-
ally adjourn the cause, until after notice shall
be served by the respondent on
the petitioner or his attorney that unless the
cause is moved for hearing within
one month from the date of the service thereof,
the claim will be considered
abandoned and the petition dismissed subject,
however, to the right to have the
petition reinstated for good cause shown, upon
application made to the deputy
commissioner before whom the matter was heard or
to the Commissioner of Labor
within one year thereafter. No claim heretofore
made shall be considered abandoned because the petition was dismissed under
this section, if such petition
has been reinstated for good cause shown, and
such petition shall be deemed to
have been dismissed without prejudice to further
proceedings upon said petition,
and further proceedings thereon shall be as
effective as though said petition
had not been dismissed.” N.J.S.A. 34:15–51
The Court stated…… “Irrespective of the absence
of express statutory authority and a one-year limitation imposed upon such a
reopening in certain circumstances, N.J.S.A. 34:15–54, it is abundantly clear
that the Division has the inherent power, “comparable to that possessed by the courts
(R.R. 4:62–2 [now R. 4:50] ), to re-open judgments for fraud, mistake,
inadvertence, or other equitable ground.” Beese v. First National Stores, 52
N.J. 196, 200 (1968). See also Estelle v.
Red Bank Bd. of Ed., 14 N.J. 256 (1954); Stone v. Dugan Brothers of
N.J., 1 N.J.Super. 13 (App.Div.1948).”
“In the present case, we initially note that
petitioner’s counsel was unable to appear to oppose the motion to dismiss
because the hearing date conflicted with his obligation to serve as a
court-appointed arbitrator in another court. We are unable to determine on this
record why, under these circumstances, counsel’s seemingly valid adjournment
request was denied. Counsel was then served with an order that referenced not
only N.J.S.A. 34:15–54, but also a requirement that the case could not be
restored unless it was ready to be tried or settled. Although petitioner’s
surgery finally occurred in September 2011, within the one-year statutory
period, the case was not ready until the doctor’s report was received on May 2,
2012. Petitioner then promptly moved to restore the case two weeks later.
“Arguably these circumstances may suffice to
warrant equitable relief under Rule 4:50–1(f), especially should respondent be
unable to demonstrate prejudice due to the delay beyond the one-year statutory
period.
“In deciding the motion, the judge of
compensation was clearly of the mistaken belief that he was unable to grant
relief “[a]bsent specific authority in the statute.” To the contrary, the
matter may be reopened if it qualifies under Rule 4:50–1(f), and even then, if
the motion is found to have been brought within a reasonable time. See Hyman,
supra, 157 N.J.Super. at 517. We conclude that this determination “is best made
in the first instance by the judge of compensation, on a record fully developed
for that purpose and accompanied by adequate findings.” Ibid. Accordingly we
remand for a further hearing consistent with this opinion.
Remanded.
N.J.Super.A.D.,2014.
Not Reported in A.3d, 2014 WL 6634885
(N.J.Super.A.D.)
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Wednesday, April 16, 2014
2 Executives Leave G.M. After Wide-Ranging Recall
DETROIT — In the first major shake-up of General Motors’ senior management since the company announced a wide-ranging recall in February, its chief spokesman and head Washington adviser, and its top human resources executive have left the company.
Selim Bingol, G.M.’s senior vice president for global communications and public policy, was part of the inner circle of Mary T. Barra, the automaker’s chief executive, handling strategy and the public response to the recall of nearly 2.6 million cars. The company announced his departure on Monday, along with that of Melissa Howell, senior vice president for global human resources. It did not say whether Mr. Bingol or Ms. Howell had resigned or if they were dismissed.
The departures are the first major executive changes under Ms. Barra, who took over in January.
Greg Martin, a company spokesman, said the departures were unrelated to the recall of Chevrolet Cobalts, Saturn Ions and other cars for defective ignition switches that are prone to turn off, shutting the engine and disabling the air bags. The company has linked the defect to 13 deaths.While Ms. Barra was expected to make management changes to reflect her strategic direction, the departures coincide with harsh criticism of how the company has handled the recalls.
Lawmakers have been particularly critical of Ms. Barra’s unwillingness to answer questions at congressional hearings on why G.M. waited more than a decade to address the...
{Click here to see the rest of this post]
Selim Bingol, G.M.’s senior vice president for global communications and public policy, was part of the inner circle of Mary T. Barra, the automaker’s chief executive, handling strategy and the public response to the recall of nearly 2.6 million cars. The company announced his departure on Monday, along with that of Melissa Howell, senior vice president for global human resources. It did not say whether Mr. Bingol or Ms. Howell had resigned or if they were dismissed.
The departures are the first major executive changes under Ms. Barra, who took over in January.
Greg Martin, a company spokesman, said the departures were unrelated to the recall of Chevrolet Cobalts, Saturn Ions and other cars for defective ignition switches that are prone to turn off, shutting the engine and disabling the air bags. The company has linked the defect to 13 deaths.While Ms. Barra was expected to make management changes to reflect her strategic direction, the departures coincide with harsh criticism of how the company has handled the recalls.
Lawmakers have been particularly critical of Ms. Barra’s unwillingness to answer questions at congressional hearings on why G.M. waited more than a decade to address the...
{Click here to see the rest of this post]
Related articles:
Corporate Conspiracy: Has Anything Really Changed?
Apr 07, 2014
All intentionally done to avoid corporate liability within the nation's civil justice system. Fortunately, the Courts balanced the playing field, and expanded benefits for injured workers and their families into a most realistic realm ...
http://workers-compensation.blogspot.com/
Workers' Compensation: Corporate Liability: Halliburton ...
Jul 27, 2013
The US Department of Justice has announced that Halliburton Corporate Services has pleaded guilty to destroying evidence arising out of the 2010 Deepwater Horizon oil spill that occurred in the US Gulf of Mexico.
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Apr 09, 2010
When a corporate entity is simultaneously an employer and a manufacturer of harmful products, workers' compensation serves to limit its tort liability with respect to its employees." Shamir v. Agilent, et al., MDL 875, Civil Action ...
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Lloyds Report Targets Potential Cell Phone Liability
Nov 16, 2010
... the Lloyds report compares the legal consequences of asbestos exposure and the development of mesothelioma and analyzes the complicity and enormous liability that resulted from corporate concealment and conspiracy.
http://workers-compensation.blogspot.com/
Corporate Conspiracy: Has Anything Really Changed?
Apr 07, 2014
All intentionally done to avoid corporate liability within the nation's civil justice system. Fortunately, the Courts balanced the playing field, and expanded benefits for injured workers and their families into a most realistic realm ...
http://workers-compensation.blogspot.com/
Workers' Compensation: Corporate Liability: Halliburton ...
Jul 27, 2013
The US Department of Justice has announced that Halliburton Corporate Services has pleaded guilty to destroying evidence arising out of the 2010 Deepwater Horizon oil spill that occurred in the US Gulf of Mexico.
http://workers-compensation.blogspot.com/
Workers' Compensation: Exclusivity Doctrine Shields an ...
Apr 09, 2010
When a corporate entity is simultaneously an employer and a manufacturer of harmful products, workers' compensation serves to limit its tort liability with respect to its employees." Shamir v. Agilent, et al., MDL 875, Civil Action ...
http://workers-compensation.blogspot.com/
Lloyds Report Targets Potential Cell Phone Liability
Nov 16, 2010
... the Lloyds report compares the legal consequences of asbestos exposure and the development of mesothelioma and analyzes the complicity and enormous liability that resulted from corporate concealment and conspiracy.
http://workers-compensation.blogspot.com/
Tuesday, February 18, 2014
Just Published: 2014 Update - Gelman on Workers' Compensation Law
Jon Gelman’s newly revised and updated treatise on Workers’ Compensation Law has just been published by West Group of Egan, MN. The treatise is the most complete work available on NJ Workers’ Compensation law.
The work offers an in-depth and insightful analysis that provides a quick and accurate guidance to those who practice workplace injury law. Time-saving comments and instructions shorten the claims process and expedite handling of issues.
New areas of the law reviewed:
The newly enacted SMART Act (The Strengthening Medicare and Repaying Taxpayers Act of 2012), and the proposed Regulations, are discussed at length in this supplement. The newly enacted statutory provision concerning balance billing and expanded jurisdiction of the Workers’ Compensation Court is reviewed. The launch of COURTS 4, the expanded workers’ compensation electronic filing system, implementing e-filing of Notice of Motions, is explained along with accompanying sample forms, codes, and instructions for filing/service. The statutory extension of lifetime benefits embodied in recent legislation for surviving spouses of police and fire department employees, who are fatally injured in-the-line of duty, is discussed. The recent case law concerning the second-prong of the “context test” involving the “Exclusivity Doctrine” is reviewed
New 2014 Section Sections include:
--Dependency—Surviving spouse of police or fire department killed in the line of duty [12.14.50]
--Case organization utilization reporting tracking system (COURTS)—Court proceeding type codes [25.22.30]
--Case organization utilization reporting tracking system (COURTS)—E-filing of motions—General motion [25.22.40]
Gelman on Workers’Compensation Law is exclusively integrated into the entire world-wide leading legal research network of West Group-Reuters-Thomson publications.
It is now available, in print, on CD-Rom and online via Westlaw™ and WestlawNext™. [Westlaw Database Identifier NJPRAC]
Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers’ compensation law and occupational/environmental disease litigation. Over a career spanning more than three decades he has been involved in complex litigation involving thousands of clients challenging the mega-industries of: asbestos, tobacco and lead paint. Gelman is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). He is the former Vice-President of The Workers Injury Law & Advocacy Group (WILG) and a charter member of The College of Workers' Compensation Lawyers. Jon is a founder of the Nancy R. Gelman Foundation Inc., which seeks to fund innovative research to cure breast cancer. He is also an avid photographer. jon@gelmans.com -www.gelmans.com
Friday, December 6, 2013
Trickle Down Stagnation
Workers' compensation is dependent the integration of federal benefits in many claims. As the federal government continues to stagnate legislatively, it is difficult for workers' compensation programs to maintain their viability and effectuating a medial social legislative system. Today's post, an editorial, from the New York Times, points out, that the federal government continues big political standoff. Unfortunately, the difficulties facing the federal government in formulating regulations and legislation, Will trickle-down two additional stagnation in the Worker's Compensation programs throughout the nation. Weather this is by design, or an unintentional consequence, the bottom line is that, but Workers' Compensation system Will need to be reformulated before choked out of existence.
Last week, in a fit of fury after they lost the ability to filibuster President Obama’s nominees, several Congressional Republicans threatened to retaliate by slowing things down on Capitol Hill. Democrats “will have trouble in a lot of areas because there’s going to be a lot of anger,” said Senator John McCain, Republican of Arizona, specifically warning that a United Nations disability treaty was now in danger of being rejected for the second time. It’s hard to see how Republicans could slow things down more than they already have for the last several years. Yes, they can prevent committees from meeting and add days of wasted time to every nomination... |
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Wednesday, December 4, 2013
Constitutional Challenges New and Old, From Florida to Oklahoma
Today's post highlights the slow and tedious battle a contitutional challenge is to a workers' compensation issue. It is shared from flojcc.blogspot.com.
There is a value to consistency and predictability in the law. Attorneys rely upon the decisions of courts to form opinions about their cases. Attorneys with a clear understanding of their state's statutes, and the interpretations which appellate courts will apply to them, are in an admirable position to provide their clients with predictions and advice regarding their specific case and its issues. In Florida, this can take time. Sometimes such specifics can take many years. In 1993, the Florida Legislature made significant changes to the Florida Workers' Compensation law. Among these was a marked reduction in the quantum of temporary total disability benefits available, from 260 weeks to to 104 weeks. A panel of the Florida First District Court of Appeal ("First DCA") concluded on February 28, 2013 that this statutory change was Unconstitutional. Westphal v. St. Petersburg. (1D12-3563)On September 23, 2013, the Court granted en banc review. This means that the entire First DCA reconsidered the case and issued a new opinion. In this second iteration, a majority of the Court concluded that the 104 week limitation on temporary total disability (TTD) did apply to the claimant, Mr. Westphal. The en banc decision did not find Constitutional infirmity in the statute, as the panel had months earlier....
|
Formaldehyde Spill At Southern Ocean Medical Center; Three Treated For Inhalation
A formaldehyde spill at Southern Ocean Medical Center on Monday caused three hospital employees to be treated for inhalation of the known carcinogen.
At 10:14 a.m., Stafford Township Police responded to a report of a hazardous material spill at SOCH on Route 72 in Stafford Township. Investigation revealed that a small quantity of formaldehyde was spilled in a utility closet located in the Labor and Delivery area of the hospital. The spill was contained to the utility closet and no evacuations were necessary, police said. No patients were injured in this incident but three hospital employees were treated for minor inhalation injuries and released, police said. Responding agencies included the Stafford Township and Barnegat Township Volunteer Fire Companies as well as Stafford Township EMS. The Berkeley Township Haz-Mat Unit responded and neutralized and contained the spill which is being cleaned up by a private contractor engaged by Southern Ocean Medical Center. Questions concerning this release may be directed to Capt. Thomas Dellane at 609-597-1189 ext. 8299. |
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Saturday, November 30, 2013
Pennsylvania Supreme Court Rules Exclusivity Doctrine Not a Bar to Asbestos Claim Against an Employer Directly If Late Manifestation
The Pennsylvania Supreme Court permitted a civil action to go forward against an employer where the employee was exposed to asbestos fiber and contracted mesothelioma. The Court ruled that the latent manifestation, after the 300 week statutory period had lapsed and the Exclusivity Doctrine was not applicable.
The court held, "that claims for occupational disease which manifests outside of the 300-week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer."
Tooley v AK Steel Corporation
No. 21 WAO 2011, No. 22 WAP 20111, No. 23 WAP 2011
2013 Pa. LEXIS 2816
Decided: November 22, 2013
Ed Note: My thanks to Judge David B. Torrey for sharing this decision. Note the reference in the Dissenting Opinion of Mr. Justice Saylor:
"8 David B. Torrey & Andrew E. Greenberg, Pennsylvania
Workers' Compensation Law & Practice §14.10 (3d ed. 2011) (expressing that Section 301(c)(2)'s time
limitation constitutes a "substantive prerequisite to ascertainment of the compensability," intended
to "establish, via arbitrary time basis, some outside limit to govern the potential [*64] liability of the
employer"). Accordingly, I would hold that the 300-week limitation in Section 301(c)(2) has no effect on
whether a worker's occupational disease comes within the WCA's coverage. As such, the exclusivity
mandate appearing in Section 303(a) of the statute applies, in my view, to preclude Plaintiffs from
maintaining a negligence-based lawsuit against Employers.16"
The court held, "that claims for occupational disease which manifests outside of the 300-week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer."
Tooley v AK Steel Corporation
No. 21 WAO 2011, No. 22 WAP 20111, No. 23 WAP 2011
2013 Pa. LEXIS 2816
Decided: November 22, 2013
Ed Note: My thanks to Judge David B. Torrey for sharing this decision. Note the reference in the Dissenting Opinion of Mr. Justice Saylor:
"8 David B. Torrey & Andrew E. Greenberg, Pennsylvania
Workers' Compensation Law & Practice §14.10 (3d ed. 2011) (expressing that Section 301(c)(2)'s time
limitation constitutes a "substantive prerequisite to ascertainment of the compensability," intended
to "establish, via arbitrary time basis, some outside limit to govern the potential [*64] liability of the
employer"). Accordingly, I would hold that the 300-week limitation in Section 301(c)(2) has no effect on
whether a worker's occupational disease comes within the WCA's coverage. As such, the exclusivity
mandate appearing in Section 303(a) of the statute applies, in my view, to preclude Plaintiffs from
maintaining a negligence-based lawsuit against Employers.16"
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Tuesday, November 26, 2013
The Next Wave: N.H.L. Players Sue League Over Head Injuries
Occupational illness claims have been a traditional
battleground in workers' compensation for larger and more significant lawsuits
and dynamic changes in the safety of the workplace induced by economics.
From the lack of the incorporation of occupational claims in
the 1911 model workers' compensation acts, in the 1950's, employers and their
insurance companies sought refuge under the "exclusivity bar" of the. workers' compensation act to shield themselves from
negligence actions for silicosis and asbestosis claims.
The creativity of claimant's lawyers, and the blatant
intentional tort acts of unscrupulous asbestos companies, brought forth a
sweeping change in the economic balance as claimants used the civil justice
system to establish an avenue for adequate compensation for asbestos victims
(lung cancer, asbestosis and mesothelioma claims).
Asbestos litigation, "longest running tort, continues
today and is the perfect example of the societal benefits of a working civil
justice system. In fact, the same
dynamic existed in: tobacco litigation, lead paint litigation, latex litigation
and has been repeated many times over.
The civil justice system, not the workers' compensation
system, established an economic incentive establishing a safer workplace for workers
and their families.
It is more than obvious that contact sports are seeing the
next wave of litigation as the employers and their insurance companies
accelerate the cycle, by barring professional athletic players from even
seeking workers' compensation benefits, ie. California.
Since it appears that no safe helmet can be manufactured to
protect the mayhem of some contact sports, the business of sports will be the
next "industry" to experience economic incentives to make the
workplace safer. The higher education system will just have to find another
economic engine to fund colleges and university and stop luring students to
play dangerous sports in hope of winning the professional sports lottery.
First football, now hockey, are emerging targets of the civil
justice system as the economics of safety takes hold and the need for safety
takes hold. Today's post is shared from the nytimes.com.
Ten former N.H.L. players sued the league Monday
for negligence and fraud, saying the sport’s officials should have done more to
address head injuries but instead celebrated a culture of speed and violence.
The players, who were in the league in the 1970s,
’80s and ’90s, filed their suit in federal court in Washington. One of the lead
lawyers is Mel Owens, a former N.F.L. player who has represented scores of
other retired players in workers’ compensation cases.
[Click here to see the rest of this post]
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
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