Can "Excess" Mean Less? A Broader Interpretation in Cardiovascular Injuries

New Jersey - Workers' Compensation

Key Points:

• The court interprets N.J.S.A 34:15-7.2, dealing with cardiovascular claims and what "in excess of the wear and tear of the claimant's daily living" means.
• Previously, it was held that a petitioner's activity at work had to be in excess or more than his activity at home for a cardiovascular claim to be found compensable.
• According to newest case law, if a petitioner's inactivity at work is greater than his or her activity at home, a workers' compensation claim can also be found compensable.

In New Jersey workers' compensation cases dealing with cardiovascular injuries alleged to be related to employment, N.J.S.A 34:15-7.2 applies. Specifically, Section 7.2 states:

In any claim for compensation for injury or death from a cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.

Material degree means an appreciable degree or a degree substantially greater than de minimus.

Perhaps the most typical case involving cardiovascular work injuries is the petitioner who sustains a myocardial infarction after working a strenuous heavy-duty job where there is testimony that those activities which caused the heart attack were in excess or more than their activities outside of work. Clearly, this is the kind of case that the Legislature was considering when it contemplated and wrote Section 7.2. However, with the recent unpublished case of James Renner v. AT&T, Docket No. A-2393-10T3, 2011 N.J. Super, Unpub. LEXIS 1668 (App. Div., Decided June 27, 2011), the court is moving toward a broader interpretation of §7.2 which may ultimately open up employers and their insurance carriers to much more exposure than they anticipated from the plain language reading of this section.

The holding in Renner finds that not only are employers and insurance carriers liable when the job activities are more than the activities of a claimant's daily living but also when the job activity is less than the claimant's activities outside of work.

In Renner, the workers' compensation judge awarded dependency benefits to James Renner, husband to decedent and employee Cathleen Renner, who died of a pulmonary embolism. This employee not only worked a 40-hour week at the office, but she also worked from home, sometimes during all hours of the day and night. The petitioner's medical expert opined that sitting for an extended period of time precipitated stasis of blood flow that led to the formation of blood clots and that her work effort of sitting at her desk for long periods of time contributed to a material degree in causing her death, despite other risk factors, including obesity. In addition, there was testimony that although the petitioner led a sedentary life in and out of work, there was additional testimony that her work inactivity was greater than her non-work inactivity, or to put it more plainly, her work activity was less than her home activity. The court applied § 7.2 and found this claim compensable.

This case raise questions and concerns. How will this affect future claims? How can less activity mean "in excess of the wear and tear of the claimant's daily living"? Does "in excess" mean more activity? Less activity? Or has it now been interpreted to mean either? Do employers and insurance carriers now have to worry about jobs that are less active than the employee's life outside of work? Wouldn't this be every sedentary duty job? How will this impact employees who are obese or out of shape? For these type of conditions, the first thing that is recommended is more exercise and more activity. So what is the outcome of a case where an employee sits behind a desk all day? A desk job by its very description is just that, a job that requires you to sit at a desk all day. It would be foreseeable that an expert would testify that if the employee was more active at work (taking into consideration that some employees can spend an average of 40-50 hours a week working), then perhaps they would have been less obese or in better shape and, therefore, it would have been less likely that they would have sustained the cardiovascular condition.

Are employers now supposed to make sure that their employees are just as active at work as they are at home? Do they need to go so far as to require some type of exercise, perhaps a gym-like class such as we once were required to take in high school? While this may seem like an overreaction or just plain silly, one still must ask the question: just how responsible are employers for the health habits of their employees? Just where is that line drawn? Employer's must also be cautioned that this is a double-edged sword ,since based on this case, they can now be penalized if the work activity is more than home activities or if the work activity is less than the activity at home.

*Kristy, an associate who works in our Cherry Hill, New Jersey, office, can be reached at 856.414.6405 or knolivo@mdwcg.com.

Defense Digest, Vol. 17, No. 4, December 2011