Angela Y. DeMary

Key Points: 

• The term “palliative” is not decisive as to liability to provide treatment.
• When addressing requests for temporary total disability benefits from former employees, investigate entitlement beyond a doctor’s note changing work status. 
• There are exclusions to the general principle that injuries during volunteering activities are not compensable.

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Thinking back to 1994—30 years ago—many of us may not recall where we were or what we were doing. In fact, many readers may not have even been born at the time. However, the celebration of 30 years of Marshall Dennehey’s publication of Defense Digest provides a good opportunity to review a few significant New Jersey workers’ compensation judicial decisions from the last three decades that still impact claims handling today. This article will focus on one decision from each decade. 

1994–2004

The first decade, 1994–2004, brought the world such noteworthy events as the debut of the television show “Friends” (1994), the election of Nelson Mandela as President of South Africa (1994), and the unforgettable events of September 11, 2001. The decade also brought a notable New Jersey Appellate Division decision that still raises issues for practitioners today. 

In 1995, the Appellate Division analyzed the term “palliative” with regard to a respondent’s liability to provide medical treatment. In Hanrahan v. Township of Sparta, 284 N.J. Super. 327 (App. Div. 1995), the court held that an employer is required to provide such treatment if there is (1) competent medical testimony that (2) the treatment is both reasonable and necessary to (3) cure or relieve the effect of the work-related injury such as to improve ability to function. Prior to that time, defense counsel would use “palliative” as an indicator to cease liability. Per this decision, that is not the legal analysis.

However, according to the court, “palliative” treatment could cease if it is no longer curing or relieving the effect of the work-related injury to improve one’s ability to function. Therefore, a practitioner should determine whether these requirements apply when addressing this issue.

2004–2014

The next decade, 2004–2014, brought about additional significant events. The world was introduced to Facebook (2004) and saw the election of Barack Obama as President of the United States (2009). This decade also included the death of music icon Michael Jackson (2009). In addition to these events, this decade brought about important judicial decisions in New Jersey workers’ compensation. Next, we will take a look at one of them.

In 2006, the Appellate Division addressed the issue of entitlement to temporary total disability benefits when an injured worker is terminated from employment for reasons unrelated to the work-related injuries and is, thereafter, placed out of work or on modified duty status by the medical doctor. In Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div. 2006), the court held that a former employee has the burden of proving that they would have been employed “but for” the work-related disability in order to receive temporary disability benefits. In other words, the work-related disability has to be the reason for the unemployment, not something else. 

It is important for practitioners to ask additional questions when a former employee is placed out of work or on modified-duty status following termination. Specifically, practitioners should inquire whether there was any active employment elsewhere, receipt of unemployment benefits, or proof of an active search for employment at the time of the medical change-in-work status. If the lack of employment was due to some other reason (i.e., simply had not sought employment since termination of employment or personal reasons unrelated to the work injury), there would be an argument that temporary total disability benefits are not due. Thorough investigation is key.

2014—2024

Lastly, 2014–2024. During this period, the world witnessed the marriage of Prince Harry and Meghan Markle (2018) and continues to be impacted by the COVID-19 pandemic (2020). In New Jersey, Chief Judge Maria Del Valle Koch was appointed as the first woman Director and Chief Judge of the Division of Workers’ Compensation (2022). In addition to these events, there continues to be important legal decisions. Of those, we will take a look at one New Jersey Supreme Court decision. 

In 2021, the court analyzed the compensability issue related to employee volunteers in Goulding v. NJ Friendship House, Inc., 245 N.J. 157 (2021). The court reiterated that an injury is compensable where there was compulsion by the employer for the employee to volunteer and that injuries during purely social or recreational events are not compensable. The court also reviewed the two-prong test used in analyzing the compensability issue for employees volunteering at employer-sponsored events: (1) whether the injury was a “regular incident of employment” and (2) whether the event provided a benefit to the employer beyond improvement in employee health and morale. 

When encountering this issue, practitioners should apply the two-prong test to the facts of the claim to determine if it is met. Analysis is very fact sensitive. As such, it is worthwhile to conduct a thorough investigation. 

The review of these decisions shows that, although a decision may have been rendered many years ago, it is necessary to be aware of it as it may continue to impact claims handling today. These decisions and analyses can influence your decision as to whether to provide compensation. Defense Digest will continue to be a source of information on legal trends, cases, and updates in the law. 

*Angela is a shareholder and member of our Workers’ Compensation Department. She works in our Mount Laurel, New Jersey, office. 

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_{Defense Digest, Vol. 30, No. 4, December 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}