Chlorpyrifos (CPS) Banned in California

Today's post is shared from khn.org
State Bans Pesticide Linked To Developmental Problems by Ana B. Ibarra, Kaiser Health NewsCalifornia will ban the use of a widely used pesticide in the face of “mounting evidence” that it causes developmental problems in children, state officials announced Wednesday.

Leased Employment Has Its Consequences

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.

New Opioid Prescription Regulations

Attorney General Gurbir S. Grewal and the New Jersey Division of Consumer Affairs, together with the New Jersey Coordinator for Addiction Responses and Enforcement Strategies ("NJ CARES"), today announced a series of regulatory actions that will advance the State’s battle to end the opioid epidemic, including proposed rules that will expand access to the prevention and treatment of opioid use disorder through telemedicine.

New Penalties Proposed for Employers

Employers who fail to maintain or file reports of accidents, wages, benefits to taxes will be subject having their license suspended or revoked under a proposed rule. The proposed rule published by The Department of Labor and Workforce Development (NJDOL) will empower NJ to strictly enforce compliance including compliance with the workers compensation law, NJSA 34:15-1, et seq.

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.

Fundamental Fairness

Workers’ Compensation matters are adversarial in nature and must furnish all parties with due process, a concept that embodies fundamental fairness[1]. There are two sides, at least, to very story, and the justice requires that the hearing official balance the facts to determine an appropriate result within the confines of the rule of law.

To ascertain the truth parties have the right to cross-examine witnesses. If that right is denied, the concept of fundamental fairness is suppressed. 

A judge of compensation ordered stem cell medical treatment. Presented with evidence by way of expert opinion the judge was held to have denied the parties fundamental fairness by not allowing a medical expert to be cross-examined and failing to go on the record to memorialize the proceeding. 

The issue arose in a workers’ compensation matter where the injured worker moved for stem cell medical treatment to relieve a shoulder injury. The compensation judge held an off the record conversation with the parties in chambers and spoke to the medical expert on the telephone. The compensation judge ruled, without taking medical testimony, that the proposed controversial treatment, not FDA approved, was approved. 

The Appellate Division in reversing the compensation judge’s decision, stated: 

“Where an important issue is discussed in chambers, “a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.” Klier v. Sordoni Skanska Const., 337 N.J. Super. 76, 86 (App. Div. 2001). We see no reason why the same caution should not apply where the motion for medical benefits is contested and a hearing is necessary. 

“ We recognize that under the Act, “hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.” N.J.S.A. 34:15-56. We also have held that “[w]hile the technical rules of evidence may be relaxed at workmen’s compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights.” Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 95-96 (App. Div. 1986) (citing 3 Larson, The Law of Workmen’s Compensation, § 79.25(c) (1983)). This includes the right of cross-examination. See id. at 96; see also California v. Green, 399 U.S. 149, 158 (1970) (describing cross-examination as “the greatest legal engine ever invented for the discovery of truth” (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940))); State v. Castagna, 187 N.J. 293, 309 (2006) (emphasizing importance and efficacy of cross-examination). 

"Crothall opposed stem cell treatment because it was not FDA approved. Dr. Krone’s testimony in chambers was not recorded and it was not taken under oath, yet it was found to be credible by the judge without affording Crothall the opportunity for cross-examination. We find that the procedures lacked fundamental fairness. We reverse the order and remand the motion for medical benefits to the workers compensation division for further proceedings consistent with this opinion. We do not express an opinion in support of or against petitioner’s claim for stem cell treatment in light of the inadequacy of this record. 

Even though the rules of evidence may be relaxed in a workers' compensation proceeding, the concept of fundamental fairness requires that the parties have the right to cross examine expert witnesses and that a formal record be made of the proceedings, even if conducted in chambers.

[1] “Fair Trial,” Legal Information Institute, Cornell Law School. (Google Scholar)

Haggerty v. Crothall Service Group, Docket No. A-4478-17T4, 2019 WL 1975907 (Decided May 3, 2019) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

See also:

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

Insufficient Evidence: When "A Lot" is Not Enough

The Admissibility of Scientific Evidence: A New Evidentiary Standard

…. 

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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.