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.

Employment Relationship Essential Criteria for Jurisdiction

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.

Equifax Battles Unemployed Workers

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

According to USA Today, thanks to a data breach that effected 143 million Americans, credit reporting company Equifax is the most hated corporation in America. 

But if you think the data breach was bad, just wait until you hear what Equifax does with unemployment claims. 

In 2012 Equifax acquired TALX (pronounced “talks”) which helps employers process unemployment claims. In 2010, the New York Times did some good reporting about how TALX helped delay and even deny unemployment benefits to unemployed workers during the height of the Great Recession with questionable appeals and other tactics. At that time, TALX processed unemployment claims for employers comprising up to 30 percent of the workforce. 

But even as memories of the Great Recession fade from media consciousness, TALX is still up its old tricks as a division of Equifax. The silver lining to the Equifax/TALX dark cloud for newly unemployed is if an employee appeals a denial of unemployment and Equifax/TALX is handling the claim, there is a good chance that Equifax/TALX will not appear for the unemployment appeal hearing. 

The mere fact Equifax/TALX no shows a hearing doesn’t automatically mean an employee wins their unemployment appeal in Nebraska. According to 224 NAC 01 014, an employee appealing a determination still must present evidence as to why the determination was incorrect. This is true whether the employee was alleged to have quit or was fired. The quit/fired distinction is important as the employee has the burden to prove they quit for good cause while the employer has the burden of proof to show the they fired the employee for misconduct in connection with employment. 

In my experience with uncontested unemployment appeals, the quit/fired distinction is less important than it is in a contested hearing. The problem for many employees though is that they don’t appeal their determination within the 20 day period allowed under Nebraska law. Additionally some employees could avoid an initial denial of benefits if they would better communicate with the Nebraska Department of Labor about their unemployment claim. 

Sometimes newly unemployed workers do things to undermine their right to receive unemployment, but I refuse to scapegoat ordinary people when a corporation like Equifax is actively working against unemployed workers pursing unemployment insurance. 

See also:
Taxi cab driver awarded workers compensation benefits

Employment Status: Common Law Tests May Need an Update

The Internet Redefines Jurisdiction

Is Social Insurance in Our Nation's Future?

NJDOL Alerts CPA;s About Employee Misclassification

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.

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.

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.

Six-Year Statute of Limitations Governs Medical Claims

In a landmark decision the NJ Court of Appeals held that medical provider claims for expenses in workers’ compensation claims are subject to a contractual six-year statute of limitations. The ruling will have a major impact upon the overburdened state’s Division of Workers’ Compensation (NJDWC) system.

The NJDWC is already recognizing a soaring number of medical expense disputes and it lacks a standardized adjudication process. The Legislature should establish a medical fee schedule and create a separate alternate dispute resolution (ADR) system to adjudicate the medical provider claims.

Virginia Holds Employer Liable for Household Contact Asbestos Exposure

An employer owes a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home.

Totally Injured Workers Maybe Getting an Increase in Benefits

The proposed Trump Administration 2019 Budget (p. 115) may allow NJ workers’ compensation beneficiaries to receive an increase in benefits. By eliminating the Social Security “reverse offset,” totally and permanently injured NJ workers will receive a triennial annual COLA increase.

“The Budget includes a re-proposal to eliminate reverse offsets in fifteen states where Workers' Compensation (WC) benefits and temporary disability insurance benefits (TDI) are offset instead of DI benefits."

NJ Mandates Reporting of Medicare Conditional Payments

The NJ Division of Workers’ Compensation has now mandated the reporting of pending workers’ compensation claims possibly eligible for reimbursement of conditional medical payments to the US Centers for Medicare and Medicare Services  (CMS) as a condition precedent to the settlement of a pending claim for benefits.  The directive was outlined in a memorandum issued by Russell Wojtenko, Jr., Director and Chief Judge of Compensation on April 18, 2018.

Federal Court Invokes the Abstention Doctrine in a Workers' Compensation Matter

A Federal Court decided that it would defer to a New Jersey Judge of Compensation to resolve an underlying issue of compensability in a contractor/sub-contractor claim. In abstaining, the Federal Court imposed the “Burford Abstention Doctrine” and dismiss the Federal action with the right to reopen the matter at the conclusion of the state workers’ compensation case.

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.'"

Guidelines for Medical Provider Claims - A Valuable Approach

While the vast majority of jurisdictions in the US have the guidance of mandatory workers' compensation medical fee schedules, New Jersey remains one of the very few with no such structure. As I reported earlier, this generates multiple issues in the claims process and creates costly delays in the adjudication of disputes.

The Internet Redefines Jurisdiction

The Internet has resulted in widespread changes in workers’ compensation including what defines a contract of employment. In determining the applicable law governing a claim, the NJ Appellate Division, in a unanimous reported decision, went back to basics in reaching the conclusion that NJ had jurisdiction.

FELA: US Supreme Court to Review Personal Jurisdiction Criteria

The United States Supreme Court will review the merits of a case involving the personal jurisdiction criteria of a FELA case.

"Issue: Whether a state court may decline to follow the Supreme Court's decision in Daimler AG v. Bauman, which held that the due process clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers' Liability Act."

NJ Legislation Moves Forward Mandating the Quick Payment of Medical Bills

A3401 As (AS) Concerns electronic medical bills for workers' compensation claims.
Labor
Identical Bill Number: S2136

Memorial Day - 2016

President and Mrs. Hoover lead nation in observing Memorial Day. The National Capital, led by President and Mrs. Hoover, on Memorial Day 1929, paid tribute to America's dead heroes of 4 wars at Arlington National Cemetary. President Hoover is shown placing a wreath on the tomb of America's Unknown Soldier. Following the Chief Executive Mrs.Hoover placed a bunch of white carnations on the tomb. 

Source Library of Congress

"The price of freedom is eternal vigilance.” 

– President Thomas Jefferson

Pleural mesothelioma reported in a school teacher: asbestos exposure due to DAS paste

The hazardous legacy exposures of school children and art teachers to  materials containing asbestos fiber, ie. Fibro Clay, and its causal relationship to mesothelioma, has been reported in a recent medical journal. Today's post is partially shared from ncbi.nlm.nih.gov/pubmed

BACKGROUND:

Malignant mesothelioma cases among primary school teachers are usually linked with asbestos exposure due to the mineral contained in the building structure. Among the approximately 12,000 cases of mesothelioma described in the fourth report of the National Mesothelioma Register, 11 cases of primary school teachers are reported, in spite of the fact that the "catalogue of asbestos use" does not describe circumstances of asbestos exposure other than or different to that due to asbestos contained in the buildings. Four cases in the Brescia Provincial Mesothelioma Register are identified as teachers, without this circumstance of exposure.

NJ Judge Orders Psychotherapy Sessions In Conjunction With Pain Management

A NJ Workers' Compensation Judge Ordered the continuation of medical services to an injured worker who has been struggling for years because of chronic knee pain depression and anxiety despite the objection of the employer who sought to terminate care. The Judge Philip A. Tornetta, Administrative Supervisory  Judge of Compensation, adopted an innovative approach  in attempt to reduce or eliminated prescribed drugs including, "Oxycontin for her knee  pain, Lexapro for depression and Xanax, which helps her sleep."

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.