Subject of Smear Campaign Recovers for Psychiatric Condition

An employee, who was the object of a smear campaign that included being the subject of  circulated pornographic cartoons, was permitted to seek benefits for psychological residuals flowing from the humiliation, shock and anger that resulted in her loss of sleep. The worker was treated for an adjustment disorder with mixed anxiety and depressive mood.


The trial court, that was affirmed, had concluded:


"...[t]he aforementioned events cannot be characterized as an honest attempt to ensure that an office is running in an efficient and effective manner. Here, [p]etitioner was subjected, in part, to a resignation rumor, a potentially improper layoff, together with the aforementioned . . . sexual propaganda . . . . [I]t shocks the conscience that same would have occurred over such a long period of time without otherwise being addressed by the employer."


In affirming the Appellate Court held:


"In finding in petitioner's favor, Judge Leslie A. Berich applied correct legal standards.  The Workers' Compensation Act is 'humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense.'"


Lori Ross v. City of Asbury Park, Docket No. A-0379-08T3 


Click here to read more about stressful conditions and workers' compensation.

Releasing 3rd Party Workers Compensation Liability Upheld

A security guard, who was injured on the premises of the employer's client, was prohibited from recovery in a negligence claim. As a condition of pre-employment, the employer had requested, and the injured worker signed, a waiver of liability against the third party.

The Court held that the waiver did not violate public policy and the release was enforceable. The third party workers' compensation release, signed as a condition of pre-employment, was upheld as the guard agreed to extinguish only her right under workers' compensation to recover only amount additional to what she already recovered under workers' compensation.

Bowman v Sunoco, Inc., 2009 WL 4828976 (Pa.Super.), 2009 PA Super 242

The Starbucks Doctrine: Injury on Coffee Break Held Compensable

The NJ Appellate Division has expanded the exceptions to the "going and coming rule" by affirming a  trial court decision hold that an injury while on a coffee break is a compensable event. The injured worker was involved in a motor vehicle accident, off the employers' premises.


The employee was a union office who drove a company car from home to work site. His duties required him to travel to a union hall to discuss future work plans with an official. The official was in am eeting and no coffee was available at the union hall, so the employee decided to drive to a coffee vendor when the motor vehicle accident occurred.


The Court's reasoning, of the so called, "Starbucks Doctrine", expanded compensbility to off-premises injuries where the deviation from employment was minor and reasonable. It was equated by the trial court as encompassed in the "the personal comfort" exception.


"Here, the judge of compensation made comprehensive findings based on credibility determinations. He found that petitioner was an “off-site” employee who, facing an extended wait to consult with an expert concerning a work-related issue, was injured while driving for a cup of coffee. It cannot be expected that he would stand like a statue or remain at the union hall with nothing to do for such a period, particularly when there was no coffee available at the site. We cannot conclude in these circumstances that the injuries were not compensable merely because petitioner chose to take his authorized “coffee break” other than at the closest location. The distance of the coffee shop from respondent's off-site jobsite was reasonable given the rural nature of the community in Winslow Township and the time petitioner had to wait to seek the counsel he sought. The judge found petitioner to be credible, and under Jumpp, accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit recovery of workers' compensation benefits."


Cooper v. Barnickel Enterprises, Inc.,
--- A.2d ----, 2010 WL 98866, N.J.Super.A.D., January 13, 2010 (NO. A-1813-08T3)

NY Governor Appoints New WC Executive Director

NY Governor David A. Patterson has appointed Jeffrey R. Fenster, age 29, as the new executive director of the NY Workers' Compensation Board.  Fenster, a lawyer, is reportedly an outsider to the system, but has some financial management experience. 

The NY workers' compensation system, like most throughout the county, has been plagued with problems. The NY Times, after in an in depth analysis of the NY system, concluded that it was, "A World of Hurt: A Costly Legal Swamp."

The appointment comes with a salary of $143,730 and was effective January 11, 2010.

New OSHA Booklet Sets Forth Hexavalent Chromium Standard

The Occupational Safety and Health Administration (OSHA) has published a booklet describing the industry requirements for safe handling of Hexavalent Chromium. Know hazards to workers handling 
this substance include lung cancer and damage to the nose, throat and 
respiratory system.


"Hexavalent chromium is a powerful lung carcinogen and exposure to this chemical must be minimized," said Assistant Secretary of Labor for OSHA David Michaels. "OSHA provides guidance on its standards to ensure that employers and workers know the best ways to prevent workplace injuries and illnesses."


Click here to read more about Hexavalent Chromium and workers' compensation.


Click here to read about Hexavalent Chromium and potential litigation for benefits.

No Free Lunch For Salty Foods

Mayor Michael Bloomberg of New York City may have put a a focus a new compensable event.  A long proponent of a healthier living environment, Bloomberg has proposed reducing salt content in food in the Big Apple by 25%.


While emphasizing the seriousness of the health hazards of salt intake, he compared the consumption of salt to asbestos and smoking, "Salt and asbestos, clearly both are bad for you," Bloomberg continued. "Modern medicine thinks you shouldn't be smoking if you want to live longer. Modern medicine thinks you shouldn't be eating salt, or sodium."


There is no free lunch in the adoption of this scenario. If an employee is exposed to salty foods in the course of the employment and suffers a medical event associated with the intake of salt, then compensability may follow.

"The New York City Health Department is coordinating a nationwide effort to prevent heart attacks and strokes by reducing the amount of salt in packaged and restaurant foods.Americans consume roughly twice the recommended limit of salt each day – causing widespread high blood pressure and placing millions at risk of heart attack and stroke. This is not a matter of choice. Only 11% of the sodium in our diets comes from our own saltshakers; nearly 80% is added to foods before they are sold. The National Salt Reduction Initiative is a coalition of cities, states and health organizations working to help food manufacturers and restaurants voluntarily reduce the amount of salt in their products. The goal is to reduce Americans’ salt intake by 20% over five years. This will save tens of thousands of lives each year and billions of dollars in health care costs."


More than 40 cities, states and national health organizations have joined the National Salt Reduction Initiative. The goal is to reduce the salt intake of Americans by 20% over the next five years.

Click here to read more about asbestos and workers' compensation. 

The Grey Area of the CMS Statute of Limitations for a Recovery Action

CMS (Centers of Medicare and Medicaid Services) has expressed an opinion that there is no specific time limit in its ability to seek recovery. At a recent town hall tele-conference concerning the implementation of mandatory insurance company reporting under Section 111 of the Medicare, Medicaid & SCHIP Extension Act of 2007, 42 U.S.C. 139y(b)(8) a spokesperson for CMS indicated that the traditional 6 year limitations statute was not the applicable time limitation for its recovery actions efforts.

CMS has been increasing its effort to recover money paid erroneously to injured workers’ whose medical benefits should have been paid by their employers or workers’ compensation insurance carriers. In an effort to reduce the CMS “pay and chase” activity, Congress enacted mandatory reporting by insurance carriers so that CMS could enforce the MSP {Medicare Secondary Payer Act] and reduce cost shifting at earlier stages of the claim while enhancing its recovery activity.

“(Tracy) Meador: Okay. And is there any - do you have any type of statute of limitations? I was told in a seminar that there’s a six year statute of limitations. Is that correct? I hadn’t heard that before.

[CMS[ Barbara Wright: This could be another one of those instances where the answer is maybe yes, maybe no depending on what you want to tie to it. Generally, there is a statute of limitations in terms of how long you have to bring a litigation action. But there’s different rules in terms of when it runs from.

And generally, anything we have doesn’t start to run until we have knowledge of the claim. And certainly in a liability situation it’s not the date of accident that controls. What we’re looking at is when there was any settlement, judgment, award or other payment.

So we would have at least six years from that date.

(Tracy) Meador: And after six years then you would no longer pursue recovery?

[CMS] Barbara Wright: That’s not necessarily true. What I said is the six year statute of limitations is generally tied to when we can pursue action in court. But there are other recovery actions that we have that we can take as well.”

FTS-HHS HCFA  Moderator: John Albert, 12-15-09/12:00 pm CT, Confirmation #5650450, Page 77