Employer Responsible For Payment of Counsel Fees On Penalty

"... a judge of compensation must award counsel fees in addition to a penalty when an employer fails to make timely payment of temporary disability benefits and the appropriate standard to fashion the reasonable attorneys' fees allowed by statute. We hold that an award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. See N.J.S.A. 34:15-64.

"...a petitioner who resorts to section 28.1 to force payment of temporary disability benefits receives not only the 25% penalty but also reasonable legal fees incurred "as a result of and in relation to [the] delay[ ] or refusal[ ]." The fee is not subject to the 20% limitation of section 64, and shall be calculated in accordance with the standard factors for constructing a fee award.


Petitioner was represented by NJ Super Lawyer, David Tykulsker, Esq.

KUBRA QUERESHI - v. CINTAS CORPORATION, 

--- A.2d ----, 2010 WL 2132441 (N.J.Super.A.D.), Decided My 28, 2010. Click here to read more about penalties. Click here to read more about workers' compensation claims.

Amended Complaint Filed in CMS Recovery Action Against Law Firms

The Secretary of Health and Human Services (HHS) [The Centers for Medicare and Medicaid Services (CMS)] has filed a first amended complant Stricker case now pending in the US District Court in Alabama for recovery of Medicare Secondary Payments (MSP). 

The recovery action is based upon an alleged failure of the attorneys to honor a claim that CMS had filed in an underlying bankruptcy claim filed in 2003. The settlement provided for distributions to be paid from 2004 through 2013 by the defendants.

The initial complaint alleges that the US may initiate a claim for recovery of Medicare conditional payments when it "learns that payment 'has been or could have be made' under a liability insurance policy of plan. 42 C.F.R. Sec 411,24(b)."

The case is now under a briefing schedule for a pending Motion to Dismiss filed by the defendants. Plaintiff's response is due May 27, 2010 and the Defendant's reply is due June 10, 2010.

Complaint: The United States of America v James J. Sticker, et al. Docket 1:09-cv-02423, filed 12.02.2009

Click here to read more about Medicare Secondary Payer Act and workers' compensation.

Federal Challenge to NJ Workers Compensation Delays Unsuccessful

The claim of an injured who brought a Federal Court action pro se for “unwarranted delays” of his NJ workers’ compensation claim was dismissed by a Federal Court. The action was based on a violation of: The Americans with Disabilities Act, the Universal Declaration of Human Rights, the Convention on the Rights of Persons with Disabilities and 42 U.S.C. sec. 1983 for violation of the First, Ninth and Fourteenth Amendments.






The worker suffered an alleged work related accident on January 29, 2008 as an employee of NJ Transit. He alleged that the Judge of Compensation from October 24, 2008 through January 7, 2010, on numerous occasions imposed delays through cancellation or postponement of his hearings.






The Court held that the Younger Abstention Doctrine, that prohibits unwarranted federal interference in an ongoing state judicial proceeding, bars the claims. Younger v. Harris, 401 U.S. 37 (1971). The doctrine is imposed when there is an ongoing state proceeding that involves an important state interest and the state proceedings afford an adequate opportunity to raise any constitutional issues. O’Neill v. City of Philadelphia, 32 F.3d 785 (3rd Cir. Pa. 1944).






The legislative intent of the Workers Compensation Act, originally enacted in 1911, was to provide a summary proceeding through an administration system utilizing the concepts of a no-fault system. The compensation program has been severely challenged over the decades by a growing burden of collateral and complex issues that now need resolution as part of the compensation process. Nationally, the state administered systems have become critically impaired by the growing state economic difficulties that have resulted in the availability of fewer resources to operate a system whose responsibilities and magnitude of demands are constantly increasing.






Townsend v. The Hon. Peter J. Calderone and the Hon. William Lake, in their official capacity as members of Labor and Workforce Development Workers’ Compensation, Civil Action No. 09-3303 (GEB), 2010 WL 19999588 (D.N.J.) Slip Copy, Unpublished Opinion.






To read more about delay and workers' compensation.


Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.

Workers Compensation Beneficiary Challenges to ERISA Setoff Allowed

A US District Court has held that a workers’ compensation claimant is allowed to go forward with his challenge of a delayed setoff of workers’ compensation benefits. The ERISA plan administrator originally, in October 2004 determined that no offset of workers’ compensation benefits would be permitted based upon a specific loss date. In December 2007 the beneficiary was by the plan administrator that the date offset had been changed and that an offset would be required.

The injured worker instituted the action claim that the plan was estopped by the late chance of plan determination of the disability date.

Luppino v. Sedwick Claims Management Services, Inc., et al., Civil Action No. 08-cv-5315 (DMC-MF), 2010 WL 1999316 (D.N.J.), Slip Copy, Unpublished Opinion.

To read more about offsets and workers' compensation.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon  Gelman or call 1-973-696-7900.

Cell Phone Use and Occupational Cancer: The Jury is Still Out

A study by a 13-country team of experts concludes that it is unable to reach a definitive conclusion on the causal relationship between cell phone use and cancer. That is not necessarily a good thing. The experts were able to agree that the interpretation of the data was disputed, and does point to the conclusion that a long-term brain tumor risk may exist.

Cell phone use has disturbingly has become ingrained in the work environment. Distracted driving caused by cell phone use has been identified as major cause of accident.

Unfortunately, if there is further delay in reaching a definitive conclusion on the association of cancer with cell phone use, then any necessary precautions will not be invoked and potential malignancies will continue. 

To read more about cell phone use and occupational accidents.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon  Gelman or call 1-973-696-7900.

Libby Care Program Begins Enrollment Process

The new Federal healthcare program for those exposed to asbestos in Libby MT has now begun registration of citizens. The new program will provide Medicare benefits to those who were exposed to asbestos, a known carcinogen.


The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs  will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

Click here to read more about Libby Care.

Click here to read about asbestos litigation.

Heart Disease Associated With Overtime Work

New studies just published establish the causal relationship of overtime work with an increased risk of heart disease resulting in a greater risk of cardiovascular death, nonfatal myocardial infarction and angina. Workers who put in just one or two extra hours a day did not appear to have an elevated risk of heart disease events, the researchers reported online in the European Heart Journal.

The study concludes that overtime work is related to increased risk of incident CHD independently of conventional risk factors. These findings suggest that overtime work adversely affects coronary health.

A major step towards liberalizing the Workers' Compensation Act relating to cardiovascular claims occurred in 1962 in the matter of Dwyer v. Ford Motor Co., 36 N.J. 487 (NJ 1962). Gerald E. Dwyer was 41 years of age and was employed at the Ford Motor Company for a period of seven (7) years doing factory laboring work. After several incidents of chest pain and numbness in his left hand requiring hospitalization, lost time, and medication, he returned to work to perform activities similar to those he had previously engaged in, including the movement of materials. In awarding Workers' Compensation benefits, the court indicated that the effort need not be a single incident, but may be a series of efforts which in combination, if related to the employment, result in a compensable event. The fact that the heart was seriously diseased prior to the fatal attack did not preclude the awarding of benefits because of the premise that the employer takes the employee as he is, with no standard of health required.

In Fiore v. Consolidated Freightways, Inc. 140 N.J. 452 (NJ 1995), the Supreme Court unanimously recognized that an occupational heart condition is compensable under the Workers' Compensation Act.  While recognizing that diseases are complex and their causes multi-factoral, the court realized that experts can disagree on the relative roles of an occupational exposure and personal-risk factors in causing a coronary condition. 

In an editorial title, "Overtime is Bad for the Heart," the European Heart Journal declares that the study will have major implication on employers who will have to reconsider the risks of overtime and compensable heart disease.

To read more about heart disease and workers' compensation click here.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon  Gelman or call 1-973-696-7900.