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Carriers Need to Consider Pursuing Third Party Claims to Collect Section 40 Liens

Posted by on 10.26.2017 in Uncategorized | Comments Off on Carriers Need to Consider Pursuing Third Party Claims to Collect Section 40 Liens

Carriers have every right to step into the shoes of the petitioner to protect and pursue Section 40 lien rights.  There has been a change in cases that give the carrier a reasonable argument that the previously defined “verbal threshold” no longer bars the workers’ compensation carrier from asserting Section 40 lien rights against a tortfeasor even  when the injured worker has chosen the limitation on liability under his or her automobile insurance carrier.

In the cases of Lambert and Talmadge, the argument presented was that the verbal threshold and/or AICRA NJSA 39: 6A -1-35, which limits a third-party plaintiff/employee from recovering non-economic damages (pain and suffering) does not apply to the workers’ compensation lien.   The benefits provided under the Workers’ Compensation Act (temporary disability as partial wage replacement, medical benefits and permanency as compensation for loss of potential future earnings) should be considered economic damages and therefore, the limit placed on the injured employee under verbal threshold and/or AICRA NJSA 39: 6A -1-35, does not apply.   The argument is that while the PIP Statute exclusively bars the injured party from recovering for medical expenses in a tort claim, there is no such language in Section 40 of the Workers’ Compensation Statute.  This argument has been successful in allowing carriers to recover Section 40 lien rights when it was previously thought there would little chance for recovery.

Therefore, when counsel or the injured employee advises that they are not pursuing the third party claim because of the verbal threshold, don’t give up.  Consult an attorney for the potential recovery of a Workers’ Compensation Section 40 lien.

For additional information about Section 40 Liens you can view our informative webinar here:  https://www.wglaw.com/WG-University/144102/Section-40-Lien-Rights

 

For more information please contact Jennifer G. Laver at 856.382.1008 or jlaver@wglaw.com.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

Workers’ Compensation Legislative Update

Posted by on 10.10.2017 in Featured, Uncategorized | Comments Off on Workers’ Compensation Legislative Update

Representative Ryan Mackenzie (R-Lehigh) authored House Bill 18 (HB 18) which, if passed, would establish a formulary that would be used to determine the reasonableness and necessity of prescription medication.[1]  More specifically, the bill would require the Department of Labor and Industry to select a prescription drug formulary.   Any prescription drug treatment inconsistent with the selected formulary would be considered unreasonable and unnecessary.  The bill permits an exception if the treating provider submits an evidence based letter of medical necessity.

 

HB 18 was presented to the House on June 14, 2017, where it encountered opposition.   It was then referred to the Human Services Committee.  The Chair of the Human Services Committee, Gene DiGirolamo (R-Bucks County), is opposed to HB 18.  If left in the Human Services Committee, HB 18 would have died there.  However, a proposal was made and a vote was passed moving HB 18 to the Rules Committee which is chaired by Dave Reed (R-Indiana County), the Majority Leader.  The current plan is to bring HB 18 back to the floor of the House in the fall of 2017.

 

In recent weeks, news articles have appeared regarding certain pharmacies owned by physicians or in which physicians have an ownership interest.  Currently, there is a provision in the Workers’ Compensation Act that prohibits a provider from referring a patient to another provider or facility in which the provider has an ownership interest.  However, doctors are arguing that the self referral prohibition does not apply to a pharmacy.  Amendments have been added to the HB 18 to clarify the prohibition of physicians referring patients to pharmacies in which the physician has a financial interest.

 

Turning our attention to the IRE, the recent Supreme Court decision of Protz v. WCAB (Derry Area School District) ruled that the section of the Workers’ Compensation Act that established an employer’s right to obtain an impairment rating evaluation is unconstitutional.  As a result, employers are without a mechanism to limit ongoing disability except in cases when the injured worker actually returns to work, is deemed capable of returning to work, or is found to have residual earning capacity.  Legislation has been introduced in the House to amend the Workers’ Compensation Act that would reinstate the basic premise of the impairment rating evaluation but to correct the portion deemed unconstitutional by the Supreme Court.  HB 1840 was referred to the Labor and Industry Committee on October 2, 2017. According to a recent discussion with Representative Mackenzie, there is hope that the legislation will gain traction within the House and the Senate.  He is uncertain of Governor Tom Wolf’s feelings towards the HB 1840 at this time.

 

Clearly, both HB 18 and HB 1840 will have a sweeping impact on the workers’ compensation community.  We are continuing to track the progress of this legislation and will provide additional updates as they become available.

[1] http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2017&sessInd=0&billBody=H&billTyp=B&billNbr=0018&pn=2014

For more information please contact Shawn Gooden at 717.237.6960 or sgooden@wglaw.com

 

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

List Grows of Municipalities, Cities and States Suing Pharma Companies Due to Opioid Crisis in the U.S.

Posted by on 09.26.2017 in Featured, Uncategorized | Comments Off on List Grows of Municipalities, Cities and States Suing Pharma Companies Due to Opioid Crisis in the U.S.

Last week, the Pennsylvania Counties of Delaware, Lackawanna and Dauphin joined a growing list of municipalities, cities and states which have filed lawsuits or plan to sue the major pharmaceutical manufacturers as part of an effort to fight the opioid epidemic. Part of the basis for these suits is that government entities have paid millions of dollars for police and emergency-related services due to increased drug arrests and overdoses.   In addition, these lawsuits allege the major pharmaceutical manufacturers downplayed the addictive nature of pain medications to increase sales and therefore, are to blame for the opioid crisis.

The lawsuits filed against these pharmaceutical companies have been compared to similar suits filed by cities, counties and states against the tobacco industry for misleading the public on the adverse health issues tobacco use had on tobacco users.   Those lawsuits led to the largest civil-litigation settlement agreement in 1998.   However, the pharmaceutical companies are pushing back due to the fact that opioids pass through various channels from the manufacturer; to the distributors; to the pharmacies and; ultimately must be prescribed by a physician.  Therefore, the pharmaceutical companies are arguing that any of these parties can be blamed for the increase in opioid use, not the manufacturer.

Tobacco and opioid lawsuits are not the only industries where government entities have filed suit against manufacturers.  Since the early 1980’s, over 30 cities and the State of New York have filed lawsuits against gun manufacturers.   Similar to the relief sought in the opioid lawsuits, these government entities filed suit to recover the costs of police and emergency medical services due to an increase in gun violence.   These lawsuits have been largely unsuccessful and ultimately led to the passage of the Protection of Lawful Commerce Arms Act (PLCAA) in 2005. This Act prevents firearms manufacturers and dealers from being held liable when crimes have been committed with their firearms, unless they have reason to know a gun is intended for use in a crime.

How do the lawsuits against the opioid manufacturers compare to tobacco and gun manufacturers?   For now, it would appear that the opioid lawsuits are more akin to the suits brought against the tobacco manufacturers and therefore, have a good chance of being successful.   In that regard, one of the common threads is that with tobacco and opioids, there is a strong argument that, even when the product is used for its intended purpose, there is a considerable risk of harm.  In other words, smoking can cause cancer and the use of opioids can cause addiction.

More importantly, these lawsuits open the door for other entities which have been financially affected by the opioid crisis (i.e. insurance companies and self-insureds) to file suits to recoup losses.  A recent study published on Science Daily indicates the opioid crisis has cost the economy $78.5 billion dollars per year, including criminal justice related costs; loss of productivity to employees; and healthcare and substance abuse costs.  Of this, it is estimated that $28 billion has been covered by insurance companies for healthcare and substance abuse, while only $7.7 billion is attributed to criminal justice related costs.   Therefore, insurance companies and self-insureds have a bigger stake in the total economic damages caused by the opioid crisis.

 

For more information please contact Jeffrey M. Seyfried at 717.237.6948 or jseyfried@wglaw.com

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

Defeating a Hoey Defense in Delaware Termination Petition Litigation

Posted by on 09.18.2017 in Featured, Uncategorized | Comments Off on Defeating a Hoey Defense in Delaware Termination Petition Litigation

The Hoey defense is applicable when an employer seeks to terminate the benefits of an employee that remains employed by the time of injury employer at the time the Termination Petition is litigated. If successful in establishing a Hoey defense, the employee can continue receiving total disability benefits despite being physically able to work and having earning power pursuant to a labor market survey.

Hoey and its progeny stemmed from a situation in which an employee, Ms. Hoey, was repeatedly told by the employer that there were attempts being made to find her light duty, and that a modified duty position would soon be available. The employer then attempted to terminate her wage loss benefits based upon her earning power identified in a labor market survey. However, the Court found that as she remained employed and was induced by the employer into having a reasonable expectation of continued employment, she was not obligated to look for work in the labor market. Therefore, she remained on temporary total disability (TDT).

The current trend among employees’ attorneys and certain panels of the Industrial Accident Board (Board) is to assert that Hoey applies to anyone who remains employed. In short, they are attempting to shape the defense to apply to a considerably broader range of employees by ignoring the Court’s language requiring “a reasonable expectation of continued employment.” This would be extremely problematic in that many long term or union employees remain “employed” almost indefinitely despite an extended absence from work.

How do we combat this defense in litigation? Recent favorable decisions we have received from the Board suggest that the crucial factor is presenting an employer fact witness to establish that the employee could not reasonably expect continued employment. For example, the employer does not have light duty. The important point though is that the employee must have been aware that there was no light duty, rather than there simply being no light duty available. Therefore, any and all efforts made to notify the employee of the lack of modified duty must be highlighted.

Finally, opening and closing arguments to the Board must stress that a broad application of the Hoey defense is contrary to public policy. Specifically, if an active employee’s benefits cannot be terminated, then employers are encouraged, and in fact would be forced to terminate employees or face indefinite TTD payments. While complex, the Hoey defense can be defeated with the right approach and evidence.

For more information please contact Geoffrey Lockyer at 215.972.7915 or glockyer@wglaw.com 

 

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

The Statute of Limitation Defense Can be a Winning Defense in Occupational Claims

Posted by on 09.08.2017 in Featured, Uncategorized | Comments Off on The Statute of Limitation Defense Can be a Winning Defense in Occupational Claims

When an employer is faced with an occupational claim filed by an employee, the statute of limitations defense should always be considered.  N.J.S.A. 34:15-34 requires that an occupational claim be filed within two years from the date the employee knew of the condition and its relationship to the job.

In order to be successful in winning a statute of limitations defense, the employer must thoroughly investigate the facts and medical evidence prior to the filing of the claim by the employee.  As part of the investigation, the employer will often require that an employee answer a set of occupational interrogatories.  From the interrogatories, an employer will obtain information including the nature of the injury, when the employee became aware that the injury was related to his or her employment and the medical treatment received for the alleged injury.  However, an employer’s investigation does stop here.  An employer most likely will need to request signed medical authorizations in order to obtain records from an employee’s primary care physician and other treating doctors listed in the answers to interrogatories.  Moreover, testimony by the employee may be needed to obtain additional facts. Once an employer has obtained the necessary discovery, he or she can make a determination as to whether the employee’s occupational claim was timely filed.

The success of the defense has increased over the years ever since the case of Huntoon vs. Borough of Clementon.  The employee was informed in 1998 that his carpal tunnel syndrome (CTS) was “probably” work related. In July 2004, the employee was told by a hand specialist that it “was” work related. The employee’s occupational CTS claim filed on April 30, 2007, was dismissed by the Court and Appellate Division for violation of the statute of limitations as the employee knew about the condition and its relationship to the employment in July 2004.

Following Huntoon, employers had a series of wins with other cases.  In Graff vs. Mitchell Park Flooring and S&A Wood Floors, Inc., the employee was a laborer refinishing wood floors from 1982-2002.  The employee was required to handle heavy equipment. In 1999, the employee began to receive chiropractic care and admits that the chiropractors advised that he had disc problems and back problems and that the chiropractors thought these issues were due to the nature of his employment. The claim was dismissed for violation of the statute since the claim was filed in 2004.

In a more recent case, Craig Mara v. United Parcel Service, the employee began working for UPS in 1983 as a package driver.  The employee testified that he knew as early as 2006 that his knee pain was related to his job.  The employee’s personal chiropractor advised him of this in 2003. The employee underwent left knee surgery approximately 10 years before filing the claim petition.  Then, the employee began to have right knee problems and admitted telling his chiropractor that the job duties were causing problems with both knees. The employee underwent bilateral knee surgery in 2010. The claim was filed in 2011. The Judge dismissed the claim for violation of the statute as the employee was aware that his knee problems were related to work in 2006.

These cases are prime examples of how the statute of limitations defense can be a winning defense in occupational claims.  With a minimal effort in fully investigating the facts and medical evidence of a claim, employers can avoid paying out thousands of dollars in medical treatment and settlement awards.

 

For more information please contact Cheryl Binosa at 973.854.1062 or cbinosa@wglaw.com

 

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

The Statute of Limitation Defense Can be a Winning Defense in Occupational Claims

Posted by on 08.30.2017 in Uncategorized | Comments Off on The Statute of Limitation Defense Can be a Winning Defense in Occupational Claims

When an employer is faced with an occupational claim filed by an employee, the statute of limitations defense should always be considered.  N.J.S.A. 34:15-34 requires that an occupational claim be filed within two years from the date the employee knew of the condition and its relationship to the job.

In order to be successful in winning a statute of limitations defense, the employer must thoroughly investigate the facts and medical evidence prior to the filing of the claim by the employee.  As part of the investigation, the employer will often require that an employee answer a set of occupational interrogatories.  From the interrogatories, an employer will obtain information including the nature of the injury, when the employee became aware that the injury was related to his or her employment and the medical treatment received for the alleged injury.  However, an employer’s investigation does not  stop here.  An employer most likely will need to request signed medical authorizations in order to obtain records from an employee’s primary care physician and other treating doctors listed in the answers to interrogatories.  Moreover, testimony by the employee may be needed to obtain additional facts. Once an employer has obtained the necessary discovery, he or she can make a determination as to whether the employee’s occupational claim was timely filed.

The success of the defense has increased over the years ever since the case of Huntoon vs. Borough of Clementon.  The employee was informed in 1998 that his carpal tunnel syndrome (CTS) was “probably” work related. In July 2004, the employee was told by a hand specialist that it “was” work related. The employee’s occupational CTS claim filed on April 30, 2007, was dismissed by the Court and Appellate Division for violation of the statute of limitations as the employee knew about the condition and its relationship to the employment in July 2004.

Following Huntoon, employers had a series of wins with other cases.  In Graff vs. Mitchell Park Flooring and S&A Wood Floors, Inc., the employee was a laborer refinishing wood floors from 1982-2002.  The employee was required to handle heavy equipment. In 1999, the employee began to receive chiropractic care and admits that the chiropractors advised that he had disc problems and back problems and that the chiropractors thought these issues were due to the nature of his employment. The claim was dismissed for violation of the statute since the claim was filed in 2004.

In a more recent case, Craig Mara v. United Parcel Service, the employee began working for UPS in 1983 as a package driver.  The employee testified that he knew as early as 2006 that his knee pain was related to his job.  The employee’s personal chiropractor advised him of this in 2003. The employee underwent left knee surgery approximately 10 years before filing the claim petition.  Then, the employee began to have right knee problems and admitted telling his chiropractor that the job duties were causing problems with both knees. The employee underwent bilateral knee surgery in 2010. The claim was filed in 2011. The Judge dismissed the claim for violation of the statute as the employee was aware that his knee problems were related to work in 2006.

These cases are prime examples of how the statute of limitations defense can be a winning defense in occupational claims.  With  focused effort in fully investigating the facts and medical evidence of a claim, employers can avoid paying out thousands of dollars in medical treatment and settlement awards.

For more information please contact Cheryl A. Binosa at cbinosa@wglaw.com or 973.854.1062.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

PA Workers’ Compensation Settlements of Less than $5,000 Still Subject to Domestic Relations Non-disbursement Orders

Posted by on 08.16.2017 in Pennsylvania | Comments Off on PA Workers’ Compensation Settlements of Less than $5,000 Still Subject to Domestic Relations Non-disbursement Orders

In Coffman v. Kline, PA Super 241 (Pa. Super. 2017), the Superior Court held that a carrier improperly disbursed workers’ compensation settlement proceeds of less than $5,000, despite a Workers’ Compensation Judge’s (WCJ) decision approving the Compromise and Release Settlement Agreement, where the county domestic relations office had issued a non-disbursement order. The Court also found that the carriers’ disregard of the non-disbursement order made it subject to a finding of civil contempt, and that the WCJ’s Decision approving the settlement agreement provided the carrier no immunity.

The employee in this case had child support arrearages totaling $14,983.10. He entered into a Compromise and Release Settlement Agreement to resolve his work-related injury for $5,000. After a deduction of counsel fees, the employee was to receive a lump sum of $3,400. The county domestic relations office was alerted to the settlement, and issued a non-disbursement order. The WCJ later approved the settlement agreement and circulated a decision ordering the carrier to issue net proceeds to the employee. The domestic relations office subsequently filed a petition for contempt, which the trial court dismissed with prejudice.

On appeal, the Superior Court clarified that the domestic relations office has an automatic statutory lien on net proceeds greater than $5,000. However, domestic relations offices also reserve the right under Section 4305 of the Domestic Relations Act to collect child support arrears in any amount, without regard to a statutory minimum sum, by issuing non-disbursement orders. The Court also found that the WCJ is only obligated to disburse net proceeds in excess of $5,000 to the domestic relations office. Therefore, the responsibility to comply with non-disbursement orders for settlements of less than $5,000 falls squarely on the carrier. The Court considered the carrier’s arguments that non-disbursement would (1) violate the WCJ’s decision to disburse net proceeds, and (2) that the ability of domestic relations to seize an employee’s entire settlement would chill negotiations. However, the Court found that these “practical concerns” were not a defense to the clear mandate of the Domestic Relations Act.

Comment:  When child support arrearages are identified during settlement, carriers and their attorneys must determine whether the county domestic relations office has issued a non-disbursement order. This is equally true in instances where the total lump sum payable to the employee is less than $5,000. Where a non-disbursement order has been issued that order should be presented to the WCJ, who can then circulate a decision that takes the non-disbursement order into consideration. As Coffman clearly illustrates, a non-disbursement order supersedes a decision of the WCJ instructing the carrier to disburse net proceeds to the employee. Therefore, it is best to address the issue with the WCJ at or before the C&R hearing.

For more information regarding this topic, please contact Weber Gallagher Attorney Dawn Nicholson at dnicholson@wglaw.com.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship

 

Court Rules that Opinion of Unauthorized Treating Doctor who did not Testify is Admissible

Posted by on 08.07.2017 in Uncategorized | Comments Off on Court Rules that Opinion of Unauthorized Treating Doctor who did not Testify is Admissible

In the matter of W.A. Harris v. Lourdes Medical Center of Burlington, the New Jersey Appellate Division, in an unpublished opinion, recently addressed the issue of whether an unauthorized doctor who did not testify holds the same weight as a treating doctor who did testify.

In the current matter, the employee was injured on April 9, 2004.  He then received an award on October 25, 2007 for permanent benefits of 5% of the statutory right hand for a sprain and strain of the thumb with pain and weakness into the right hand.  The employee then filed an application for review on June 22, 2009.  On April 6, 2012, he had an unauthorized consultation with Dr. Ragland, a hand expert, who diagnosed him with advanced arthrosis and provided him treatment including splinting and a cortisone injection.  Ultimately, Dr. Ragland recommended a right thumb arthrodesis due to continued discomfort.  Respondent’s hand expert, Dr. Ames, felt the employee had reached maximum medical improvement.  As a result, the employee filed a motion seeking to compel the employer to pay for the treatment recommended by Dr. Ragland.  In support of the motion, the employee did not have Dr. Ragland testify but rather used Dr. Gaffney; not an orthopedist nor a hand expert but a doctor used by the petitioners’ bar for permanency and treatment evaluation issues.  Dr. Gaffney agreed with Dr. Ragland that surgery was needed, relying on his observation and research and talking with the employee.  Dr. Ames testified on behalf of the employer noting that he did not see enough arthritis in the joint to warrant an arthrodesis and that performing the surgery would decrease the range of motion.

During cross examination by the Judge, Dr. Ames did admit that the employee had tenderness and problems in the thumbs, but stated that he did not agree with Dr. Ragland that surgery was necessary.  The Judge of Workers Compensation (JWC)  found that Dr. Ragland’s findings, as adopted by Dr. Gaffney, were more compatible and credible and that, while Dr. Ragland was not an authorized doctor, he was an expert treating doctor.  The JWC further noted that treating doctors are given greater weight than evaluating doctors.

The employer proceeded to appeal the decision.   The crux of the dispute was related to the JWC’s reliance on the opinion of Dr. Ragland who did not testify before the court and gave greater deference to his opinion.  The appellate court affirmed the JWC’s decision, finding that since the employer consented to the admission of Dr. Ragland’s reports in evidence, and did not object to them as inadmissible net opinion or on any other basis, they could not make the argument now.  They also found that the JWC’s valuing Dr. Gaffney’s testimony over that of Dr. Ames was based on facts that were supported by substantial credible evidence in the record and not so wide of the mark. Therefore, the court must defer to the trial judge.

Comment: Harris demonstrates that the petitioner was able to “back door” the opinion of an unauthorized treating specialist through testimony of an evaluating doctor.  This decision supports a strategy for the petitioner to introduce an unauthorized treating doctor without having to pay (certainly a much higher fee) to bring them in to testify.  As indicated by the court, had the employer objected to the admission of the unauthorized records at the time they were presented, the opinion may have been different.  We will be curious to see if similar rulings are rendered for the employer as well.

For more information please contact Jennifer Laver at jlaver@wglaw.com or 856.382.1008.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

Medicaid Liens: Thwarting Settlements

Posted by on 07.19.2017 in New Jersey | Comments Off on Medicaid Liens: Thwarting Settlements

A settled workers’ compensation claim can come undone when liens are discovered after the settlement has been agreed upon. There is always much discussion about Medicare liens in workers’ compensation. It should also be remembered that Medicaid can assert liens too.

Medicaid is a state administered healthcare program for individuals who meet certain criteria for eligibility. To be eligible for Medicaid in New Jersey, an individual must be a resident of the state, a US citizen or qualified alien and meet specific standards for financial income. Financial eligibility is based upon Modified Adjusted Gross Income. The specific financial income eligibility can be found at http://www.njfamilycare.org/income.

Just like Medicare, Medicaid is a secondary payer and has the right to seek reimbursement for medical expenses related to a workers’ compensation claim. It is very possible for an individual to be receiving Medicaid and Medicare benefits.

Typically, a claim petition is filed with the Division of Workers’ Compensation and the injured worker either acknowledges or denies being entitled to Medicaid benefits. If he or she acknowledges being eligible for Medicaid benefits and the claim is denied, a request should be made to the worker’s attorney for a Medicaid lien search to be conducted. A request should be made even if the claim was accepted, if there was unauthorized treatment.

Many settlements have unraveled when the injured workers’ consent to the settlement is being placed upon the record and the workers acknowledge receiving Medicaid benefits. In order to avoid this issue and prolonging an already settled claim, careful attention should be given to whether an injured worker would be eligible for Medicaid benefits.

While Medicare and Medicaid are both secondary payers entitled to reimbursement, there are differences. The insurance carrier is not required to report a claim to Medicaid whereas with Medicare they must report under Section 111. Additionally, there is no requirement that the insurance carrier obtain the Medicaid lien. Typically this is a search conducted by the injured worker’s attorney. As the burden lies on the injured worker to obtain the Medicaid lien, when a file comes across our desk which notes the injured worker is Medicaid eligible we contact his or her attorney and request a Medicaid search be conducted. This can prevent undue delay in settlements.

Just like Medicare, Medicaid has the ability to bring a settlement to a screeching halt when the parties are unaware of Medicaid’s lien. On a positive note, Medicaid might provide responses regarding a lien quicker than Medicare.

For more information please contact Vanessa Mendelewski at 973.854.1061 or vmendelewski@wglaw.com.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

 

 

Court Rules Worker Injured on Day Off Entitled to Workers’ Compensation Benefits

Posted by on 07.17.2017 in New Jersey | Comments Off on Court Rules Worker Injured on Day Off Entitled to Workers’ Compensation Benefits

The New Jersey Workers’ Compensation Statute defines compensable accidents as those “arising out of and in the course of employment.” N.J.S.A. 34:15-7.  Issues often arise regarding compensability when a worker sustains an injury while either away from the employer’s premises or “off the clock.”  In the matter of Grawehr v. Township of East Hanover, the New Jersey Appellate Division, in an unpublished opinion, recently addressed the issue of whether a worker who is injured on the employer’s premises on his day off is entitled to workers’ compensation benefits.

 The employee, a police officer, sustained an injury to his shoulder in the parking lot of the East Hanover Township Police Department when he slipped on ice on December 9, 2011. Officer Brian Grawehr testified that he was not scheduled to work on the day of the accident.  He went to his office to pick up his pay stub and to check his personal file to determine if he was scheduled for any upcoming municipal court hearings.  A recent merger of municipal courts with the Township of Hanover had led to officers missing scheduled hearings.  Officer Grawehr testified that officers had been disciplined for failing to appear. In addition, tensions had built between the municipal court staff and the police officers.  The court noted that the officer himself had never missed a court hearing, nor were any hearings scheduled before December 22, 2011.  Officer Grawehr’s superior officer confirmed that many officers came to the office on their days off to check their personal file, although there was no requirement for them to do so.

The Appellate Court addressed two separate issues regarding compensability.

First, it ruled that compensability attached even though the officer fell in the police headquarters parking lot. The Court noted that injuries occurring on an employer’s premises, while in the course of employment, are compensable even if the injury occurs before or after the workday begins or ends. Konitch v. Hartung 81 N.J. Super. 376 (App. Div. 1963) certif. denied, 41 N.J. 389 (1965).

Second, it looked to the reasons why the officer was present at police headquarters on the day of the accident. The Court acknowledged that an injury occurring at work is not a sufficient basis alone for finding compensability, and that there must be some casual connection between the accident and the employment. Mule v. N.J. Mfrs. Ins. Co. 356 N.J.Super. 389, 397 (App. Div. 2003). However, an injury is compensable if an employee is performing an act that is mutually beneficial to the employer, even if the injury occurs after work hours. Salierno v. Micro Stamping, Co. 136 N.J. Super, 172 (App. Div. 1975).  The Court held that the officer checking his file for upcoming court appearances was mutually beneficial to the employer.  It specifically noted that the chaos existing with the merger of the two municipal courts led officers to miss court hearings.  Therefore, it was a benefit to the employer for the officer to check on upcoming hearings.  The Court ruled that this benefit was sufficient enough to apply the “mutual benefit” doctrine and outweighed the personal nature of the officer’s appearance at headquarters to pick up his pay stub.

Compensability of injuries occurring during times other than regular work hours are assessed on a case-by-case basis and are particularly fact sensitive. Although there are few bright line rules to determine compensability in such cases, the ruling above does demonstrate that courts will apply the “mutual benefit” liberally in order to find compensability.

For more information, please contact Scott Wilson at 856.667.9111 or swilson@wglaw.com.

 Disclaimer: The content of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.