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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

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.