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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN NEW JERSEY WORKERS’ COMPENSATION IN 2021

What’s Hot in Workers’ Compensation, Vol. 24, No. 12, December 2021

December 1, 2021

by Kiara K. Hartwell

1.    The Appellate Division affirmed a Judge of Compensation’s decision to include the petitioner’s portion of attorneys’ fees and costs in the employer’s Section 40 lien.
Panckeri v. Allentown Police Dep’t, Docket No. A-2015-19 (Appellate Division, Decided Mar. 2, 2021)

In this per curiam decision, the Appellate Division enforced a statutory lien, agreeing with the Judge of Compensation that the petitioner’s share of costs and fees should be included as a part of the subrogation calculation. In affirming the judge’s decision, the Appellate Division heavily relied on the judge’s reasons and only added that the petitioner’s reliance on Kuhnel v. CNA Insurance Cos., 322 N.J. Super. 568 (App. Div. 1999) was misplaced, as the petitioner’s share of fees and costs was not addressed Kuhnel was decided eight years prior to the 2007 amendment of Section 40, in which there was no mention of a petitioner’s portion of fees and costs.

2.    The New Jersey Supreme Court addressed medical marijuana in workers’ compensation cases.
Hager v. M&K Constr., 246 N.J., 1247 A.3d 864 (2021)

The New Jersey Supreme Court affirmed both the workers’ compensation court’s order and the Appellate Division’s to order a respondent to reimburse a petitioner’s medical marijuana costs. First, the Supreme Court found the employer did not qualify as “a government medical assistance program or private health insurer” under the Compassionate Use Act and N.J.S.A. 24:6I-14 and that medical marijuana was a reasonable and necessary treatment. Finally, the Supreme Court noted the employer was not aiding and abetting the petitioner’s possession of marijuana by reimbursing medical marijuana costs.

3.    The Appellate Division affirmed dismissal of a workers’ compensation case based on the premises rule.
Pilone v. Cnty. of Middlesex, Docket No. A-1676-19, (Appellate Division, Decided Mar. 15, 2021)

The Appellate Division agreed with the judge’s decision that the petitioner’s injury was not compensable as it did not arise out of and in the course of employment. In reiterating that the premises rule limits an employer’s liability to locations that the employer controls, such as by ownership, maintenance or exclusive use, the Appellate Division noted the respondent had no control over the sidewalk where the petitioner fell. In addition, the Appellate Division pointed out the petitioner failed to prove the respondent directed her to have her meeting in the donut shop. 

4.    The Appellate Division affirmed a judge’s finding of causal relationship between the work accident and need for treatment after weighing expert opinions.
Soto v. Exclusive Coachworks, Inc., Docket No. A-2331-19, (Appellate Division, Decided Apr. 12, 2021)

In affirming a judge’s order to provide benefits, the Appellate Division noted the judge, as the trier of fact, was in the best position to weigh the credibility of experts and the decision was well-supported by the record. In this case, both experts agreed the petitioner needed a total knee replacement; that as a result of the 2017 incident, he required arthroscopic surgery, at a minimum; and his underlying arthritis was exacerbated by the 2017 incident. 

5.    The Appellate Division affirmed a workers’ compensation judge’s decision to dismiss as the injury was not in the course of employment.
Regalado v. F&B Garage Door, Docket No. A-0083-20 (Appellate Division, Decided Jun. 8, 2021)

The Appellate Division affirmed a Workers’ Compensation Judge’s decision to dismiss a petitioner’s claim as a result of a car accident after an employer’s annual holiday party. The Appellate Division reviewed Lozano v. Frank DeLuca Constr., 178 N.J. 513 (2004), noting that an employee’s subjective impression of compulsion alone was insufficient. Rather, other factors needed to be taken into account, such as the employer’s solicitation of employee participation, when/where/whom the event takes place, and whether refusal could negatively impact the employee’s employment. 

6.    The Appellate Division affirmed a workers’ compensation court order to deny additional medical and temporary benefits to a petitioner.
Constanzo v. Meridian Rehab, Docket No. A-5547-18 (Appellate Division, Decided Jun. 17, 2021)

The Appellate Division agreed with the judge, who heard testimony and found the petitioner failed to establish a causal relationship between the original injury and current left knee condition. There was ample evidence to support that the current left knee condition was not related to the April 2016 incident and the judge did not err in giving greater weight to Dr. Sieler’s testimony, as judges are in the best position to assess credibility, and giving more weight to one expert’s opinion is not a basis to reverse a judgment.

7.    The Appellate Division affirmed the workers’ compensation court decisions, noting petitioners were not entitled to redetermination of benefits.
Published Consolidated Appeals (Appellate Division, Decided Jun. 21, 2021): Wilhelm v. Ryder Logistics & Transp. Sols. & Second Injury Fund, Docket No. A-3770-18; Bozarth, Sr. v Burlington Cnty. & Second Injury Fund, Docket No. A-3792-18; Schiazza v. Western Oilfield Supply & Second Injury Fund, No. A-3797-18; and Pierce, Jr. v. CBF Trucking & Second Injury Fund, Docket No. A-3798-18

The Appellate Division agreed with the Judge of Compensation that N.J.S.A. 34:15-95.5 did not compel a triennial redetermination of Average Current Earnings (ACE) nor was it mentioned. As an issue of first impression, the Appellate Division noted that New Jersey was a reverse offset state, in which the workers’ compensation award was reduced rather than Social Security Disability. In addition, the Appellate Division noted the plain language does not include same and there was no mention in the legislative history. It was also indicated that 42 U.S.C. § 424a(d) created an exception for reverse offset states. As such, the Appellate Division found the triennial redetermination of Average Current Earnings (ACE) was not applicable in New Jersey as a reverse offset state.

8.    The Appellate Division affirmed grant of summary judgment for plaintiffs’ failure to establish intentional wrong.
Estate of Portillo v. Bednar Landscaping Serv., Inc., et al. and Estate of Zelaya v. Bednar Landscaping Serv., Inc., et al., Docket No. A-3110-19 (Appellate Division, Decided Jul. 8, 2021)

In affirming the Law Division’s grant of summary judgment, the Appellate Division found the plaintiffs were collecting workers’ compensation benefits and the defendants did not commit an “intentional wrong.” After reviewing relevant case law, the Appellate Division found that, unlike some of the prior cases, the defendants here had no prior OSHA citations and were not aware of OSHA’s safety regulations for trenches. In addition, the plaintiffs could not show the defendants had knowledge regarding the unsafe trench practice and substantial certainty of the collapse. Judge Sabatino joined in the majority’s decision to affirm summary judgment, but added in his concurring opinion his thoughts on the troubling inconsistency between the defendants’ lack of knowledge assertions in the civil case and Bednar Landscape’s plea of guilty to a criminal accusation of violating a known legal duty to take precautionary safety measures. 

9.    The Appellate Court affirmed dismissal of claim for petitioner’s failure to demonstrate injury was in course and scope of employment.
Mackoff v. New Brunswick Saw Serv., Docket No. A-3625-19 (Appellate Division, Decided Jul. 14, 2021)

The Appellate Division agreed with the judge in denying the petitioner’s motion and dismissing the claim. In doing so, the Appellate Division reviewed Jumpp v. City of Ventnor, 177 N.J. 470 (2003), in which the Supreme Court found that compensability for employees who work away from the office should be based on whether the employee was performing job duties at time of the injury. Because the petitioner admitted that the Inn was two hours out of his way, rather than going directly to his office from the meeting location; the Inn was never a customer; and he had no other appointments with customers, the Appellate Division declined to disturb the judge’s findings. 

10.    The Appellate Court reversed dismissal of workers’ compensation claim under premises rule.
Walker v. Saker ShopRite, Docket No. A-2770-19 (Appellate Division, Decided Sep. 7, 2021)

The Appellate Division reversed the Workers’ Compensation Judge’s dismissal of a claim based on the conclusion that the accident did not take place in the course of the petitioner’s employment. In revising the premises rule, the Appellate Division found the petitioner’s incident occurred in an area controlled by Saker. The Appellate Division further explained that “it is well-established in workers’ compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right.” 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.