Thought Leadership

1.    The Appellate Division addresses permanent partial vs. total disability.
Hughes v. Port Auth. of N.Y. & N.J. and State of N.J. Second Inj. Fund, No. A-1188-22 (January 30, 2024)

The Appellate Division affirmed the workers’ compensation order for an increase in the petitioner’s permanency award but denied his claim that he was permanently and totally disabled. The petitioner suffered a cardiac injury on July 14, 2004. He filed a claim, and after a trial in which he asserted he was 100% disabled, a workers’ compensation judge found he was 33 1/3% disabled. The petitioner then re-opened his claim and joined the Second Injury Fund into the litigation. The only issue at trial was whether there was any increase in permanent disability as a result of the July 14, 2024, cardiac event. After trial, which included testimony from the petitioner and experts for both sides, and review of medical records, the judge found the petitioner’s disability increased to 45% but that he was not totally disabled. The petitioner appealed, arguing he should have been found 100% disabled. The Appellate Division noted the judge thoroughly laid out the evidence and reasoning for his decision. While the petitioner argued the judge should have given more weight to his expert’s opinion, the judge explained his reasons for rejecting same. 

2.    The Appellate Division addresses pro se claim for medical and temporary benefits.
Bello v. United Panam Financial Corp., No. A-2986-21 (March 6, 2024)

A pro se petitioner appealed from a workers’ compensation order finding that his injuries were not causally related to his employment. The petitioner filed two claims, both seeking medical and temporary benefits from the respondent. He testified he had to use his own car for work and had it serviced at Holman Cadillac, noting he noticed a chemical order in his car after it was serviced. A week later, he turned on the air conditioner and noticed a stronger odor. He turned it off, stopped to see a client and then stopped at a restaurant to rinse his mouth, at which point he started coughing up blood. The petitioner hired Eagle Industrial Hygiene Associates to test the air quality in his car. In their report, they noted they detected an odor after operating the air conditioner for 1.5 hours and that the products used for his car included some dangerous components. The petitioner retained Dr. Lawrence Guzzardi as his expert, who acknowledged he was not treating patients, had not been affiliated with any hospital since 2016 and most of his income came from his real estate business. Dr. Guzzardi opined the petitioner’s injuries were due to exposure to the chemicals. In response, the respondent offered up the testimony of Dr. Howard Kipen (toxicologist) and Dr. Samuel Kahnowitz (pulmonologist), both of whom found no causal link between his symptoms and the alleged exposure. Afterwards, the judge issued an extensive written decision, finding the respondent’s experts were more credible and, thus, the petitioner failed to establish causation. The Appellate Division found no basis to disturb the judge’s decision, especially as both of the respondent’s experts provided the reasons for their conclusions.

3.    The Appellate Division finds no requirement that a lien had to be paid immediately following settlement with a third-party tortfeasor under N.J.S.A. 34:15-40.
N.J. Transit Corp. v. Joseph, No. A-1194-22 (March 19, 2024)

The Appellate Division vacated and remanded a trial court order denying New Jersey Transit’s application for satisfaction of its workers’ compensation lien as premature after the third-party settlement. The petitioner was injured while working for New Jersey Transit and filed workers’ compensation and third-party cases. While the workers’ compensation case was pending, the petitioner settled with his UM carrier, and those funds were disbursed to him. New Jersey Transit filed a verified complaint and order to show cause, seeking reimbursement of its lien. The trial court denied their application as premature, without hearing oral arguments. The Appellate Division reviewed N.J.S.A. 34:15-40, noting there was no mention of a timeline for satisfying an unperfected lien. In addition, there was no mention of a requirement that a lien had to be paid immediately following settlement with a third-party tortfeasor; instead, it could not be fully satisfied until the workers’ compensation case was finalized and the employer’s liability determined. The case was remanded to the trial court to ensure the lien was protected until the workers’ compensation case was resolved.
 
4.    The Appellate Division affirms dismissal of a workers’ compensation claim as outside the scope of employment. 
Latshaw v. Lakewood Twp. Police Dep’t, No. A-3702-21 (March 25, 2024)

The petitioner was working for the employer as a dispatcher, and while on her meal break in October 2018, she was rear-ended. She filed a workers’ compensation claim, and the employer opposed, arguing she was injured outside the scope of her employment. The petitioner testified that she had employer-approved breaks, including for lunch, and that she was paid for that time, even if she left the premises. She had driven to a restaurant for lunch and was injured on her way back to the station. The employer moved to dismiss her claim as the accident occurred while on a personal errand, and the judge granted same. The Appellate Division referenced the Supreme Court decision in Keim v. Above All Termite & Pest Control, 256 N.J. 47 (2023). Applicable case law and statute were reviewed in defining employment and exceptions, including the premises rule, special mission rule, paid travel time rule and authorized vehicle rule. In going through these exceptions, the Appellate Division emphasized that the petitioner was not covered under any of these exceptions and noted the petitioner’s paid status during her break did not mandate workers’ compensation coverage. The Division affirmed dismissal of the claim.

5.    The Appellate Division addresses compensability for a circumstance involving mandatory reporting by the employer.
Terhune v. Port Auth. of N.Y. & N.J., No. A-3206-22 (May 8, 2024)

The petitioner worked for the employer, and on December 14, 2013, reported for mandatory snow duty. As a part of same, he had to stay at an assigned Marriot Hotel for 12 hours and work the other 12 hours. He was compensated for the entire 24-hour shift. The petitioner had a pre-existing back injury, requiring light exercise. After using the hotel gym, he slipped and landed on his back as he was entering the hotel pool. The incident was reported, and the petitioner was taken to the hospital. Although the respondent denied the claim, arguing it did not arise out of his employment, the judge found the employer required the petitioner to remain at the hotel and all expenses were paid by the employer. The judge found the case compensable and entered a final decision and judgment for 75% permanent disability. The Appellate Division rejected the employer’s appeal consistent with the judge’s reasoning.

6.    The Appellate Division reviews the Workers’ Compensation Act bar.
Barrett v. Hackensack Univ. Med. Ctr., No. A-3441-22 (June 13, 2024)

The Appellate Division reversed and remanded the trial court’s order granting the employer’s summary judgment motion. The petitioner finished her overnight shift, clocked out, and accompanied her son in the respondent’s emergency room. Her son was discharged about three-and-a-half hours later. While walking to her son’s car in the garage, the petitioner tripped and fell. She filed a case against the employer, who filed a summary judgment motion. The judge granted the motion, noting the Workers’ Compensation Act barred her from suing the respondent as she never left the premises after her shift ended. The Appellate Division reversed and vacated the order, noting the petitioner was not in the course of and did not arise out of her employment when the incident occurred.

7.    The Appellate Division addresses coverage in a workers’ compensation and third-party setting.
Tejada v. 74 Industries, Inc., et al., No. A-2643-21 (July 12, 2024)

The insurance carrier issued a standard workers’ compensation and employers liability policy to the respondent. The petitioner was injured at work and filed a workers’ compensation claim, which was resolved through an order approving settlement with dismissal (Section 20). The petitioner also filed a complaint for intentional torts against the respondent, who, in turn, filed a third-party complaint against their insurance carrier, seeking coverage. At the time of the workers’ compensation settlement, there was no reference to the petitioner’s complaint in the Law Division. The petitioner’s complaint alleged intentional wrongs within the exception of the workers’ compensation bar. The respondent then tendered the complaint to their carrier for defense and indemnification, which the carrier declined. The judge granted the insurance carrier’s motion, noting its policy clearly excluded intentional wrongs from coverage. The Appellate Division confirmed the exclusion and policy language were unambiguous in excluding coverage for intentional wrongs and affirmed. 

8.    The Appellate Division analyzes the special employer rule.
Urena v. A&D Freight Logistics, LLC, et al., No. A-2302-21 (July 29, 2024)

Hartford Underwriters Insurance appealed from a February 15, 2022, order denying its motion to dismiss for lack of coverage. A&D Freight cross-appealed from the January 19, 2022, and February 15, 2022, orders, which found it was liable for dependency benefits as the decedent’s employer. The underlying claim resulted from a fatal accident involving the decedent on March 31, 2017. The decedent was the owner-operator of Triple Star Transport, LLC and was assigned to transport materials by A&D Container Logistics and A&D Freight. Triple Star was insured by Hartford; A&D Container was insured by New Jersey Casualty Insurance Company (NJCIC); and A&D Freight was insured by New Jersey Property Liability Insurance Guarantee Association (NJPLIGA). The petitioner (decedent’s wife) filed dependency claims against all three companies and their insurers, which were later amended to include NJM as A&D Container’s insurer. After trial, the judge found Hartford did not cancel its policy per the statute and that all three companies were liable to pay dependency benefits under the theory of dual employment. The Appellate Division found Hartford failed to provide proof that there was personal knowledge of the notice of cancellation being sent to the employer. As such, Hartford failed to meet its burden of proper cancellation. As for the special employer argument, the Appellate Division rejected same, noting the three factors to establish the special employee relationship was present (contract of hire, work essentially that of a special employer and right to control). As such, the Appellate Division affirmed the order denying Hartford’s motion to dismiss for lack of coverage and finding A&D Freight liable for dependency benefits as the decedent’s special employer.

9.    The Appellate Division reviews the intentional wrong exception.
Busby v. Seabrook Bros. & Sons, No. A-1925-21 (August 5, 2024)

The petitioner began working for the employer in January 2017. In April 2017, he injured his right hand while cleaning a commercial mixing machine. The petitioner filed a personal injury action against the respondent, alleging substantial certainty of harm due to removal of the machine’s guard and failure to train the petitioner. The employer moved for summary judgment. After oral arguments, the judge rendered an oral opinion granting the motion. The court found the employer did not engage in any deliberate acts that led to the petitioner’s injury and that their failure to train and to have lockout procedures in place were more akin to negligence. There was also a lack of any prior injuries on Line 9. The Appellate Division affirmed, noting there was no intentional or fraudulent deception by the employer and that the petitioner was injured when Line 9 was unexpectedly activated. 

10.    S2822/A3986 signed into law.

On August 22, 2024, Acting Governor Nicholas Scutari signed S2822/A3986 into law. Under R.S.34:15-64, the attorney fee cap in workers’ compensation cases were at 20%. This bill amends the statute to raise the attorney fee cap in workers’ compensation cases to 25%. This also impacts fees on motions for medical/temporary benefits as well as permanency awards. The rationale behind the amendment was that the 20% fee cap did not account for the additional and increasing duties of workers’ compensation attorneys since the cap was established in 1927. This amendment is effective immediately and applies to all claims pending on or after enactment of the bill. As such, any fees awarded on motions and permanency awards may be subject to this increased fee cap as of August 22, 2024. However, the workers’ compensation judges still have discretion on all fees. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 12, 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. 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 © 2023 Marshall Dennehey, 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.}