Perception of Claimant Insuffient to Meet Burden of Proof

The Chief Financial Officer of a day care center was denied her caim for psychological disability resulting from a claim of a heavy work load. The Court held the cause was not peculiar to her employment, that there was a lack of supporting objective mendical evidence, and that the underlying, pre-existing disability from childhood resulting in a compulsive disorder was the cause of the condition.

K.S. v Sunnydays Early Childhood Services, 2010 WL 173531 (N.J. Super.A.D.) decided January 20, 2010.

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Workers Compensation Law Firm Absolved of Legal Malpractice for Negligent Advice

A NJ workers' compensation firm, successor to another firm representing the claimant in a workers' compensation claim,  has prevailed on appeal in defending against charges of  providing negligent advice to an injured worker. The successor firm was joined as a third-party defendant in a legal malpractice claim where the claimant alleged that he should have been furnished advice about his claim for retirement benefits.

While the court reasoned that the injured worker may have had a viable cause of action against the law firm, the mechanism of a third-party joinder was not an effective method of bringing a claim. The withdrawing defendant-law firm, that had previously presented the worker, was not entitled under the law to join the successor firm for contribution. The court concluded, "...that attorneys in this situation cannot be characterized as joint tortfeasors and that a successor attorney owes no duty to a predecessor attorney to correct the predecessor's errors."

Summary Judgement was granted the third-party defendant firm and it was awarded sanctions $16,622.49) and expenses ($15,555.20) against the defendant firm for filing a frivolous claim.

Arthur v Klitzman & Gallagher v. Ansell, et al. and Schebell, et al., 2010 WL 163194 (N.J.Super.A.D.) Decided November 23, 2009

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Silica Workers Prone to Fungal Infections

A just release study reports that silica workers have a greater risk of contracting fungal infections and dying from them:


"We found that persons who die with silicosis are more likely to die with pulmonary mycosis than are those who die without pneumoconiosis or who die with the more common pneumoconioses. Insofar as silica dust impairs cellular defense, silica-exposed workers (without silicosis) may be at increased risk for fungal infections, as they are for mycobacterial infections."


Concurrent Silicosis and Pulmonary Mycosis at Death,Yulia Iossifova, Rachel Bailey, John Wood, and Kathleen Kreiss, DOI: 10.3201/eid1602.090824 Emerg Infect Dis. 2010 Feb


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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 


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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.