Personal Injury Law Journal

On May 14, 2013 the Workers’ Compensation Committee of the Camden County Bar Association presented a seminar titled Workers’ Compensation Update, Case Law and the Medicare Smart Act.  The Honorable Richard E. Hickey III, (retired) Alan Schwalbe, Esq. and Carin O'Donnell spoke at the seminar.

Judge Hickey outlined some of the most recent and pertinent cases of the past few years.  These included the case of Dubrel v. Maple Crest Auto Group, an Appellate Division case from January 30, 2012.  In the Dubrel case the Judge of Workers’ Compensation found that the injured worker’s testimony was “purposefully and knowingly false” and “made for the purpose of obtaining benefits.”  The injured worker sustained injuries to his low back while working as an auto mechanic.  His case was accepted by the workers’ compensation carrier, and he was provided with medical treatment and temporary disability benefits.   During the trial of his case  to determine the extent of his permanent disability, the Judge found that the worker testified falsely about the extent of his ability to participate in his hobby of horse training after he was injured at work.  He testified that he did NOT in fact participate in the activities he used to do before he was injured, specifically his activities as a horse trainer and driver.  The adjuster assigned to his case by the workers’ compensation carrier found evidence on a racing web site that this worker had worked as a horse trainer and/or horse driver on many occasions during the period of time that he testified that he was unable to do this type of activity.  Based on the evidence submitted by the workers’ compensation carrier, the Judge dismissed the case, awarded no benefits, and referred the case to the State of New Jersey fraud unit.

Mr. Schwalbe addressed the Medicare Smart Act, an Act that is meant to streamline the Medicare Conditional Payment process effective April 10, 2013.  The Act leaves many unanswered questions, and the attorneys present at the Seminar agreed that it might take to a while to see if the Medicare Smart Act will actually do what they are intended to do — simplify the Medicare lien situation.  Only time will tell.

On May 20, 2013, the New Jersey State Assembly by a vote of 53-19-4 passed the Thomas P. Canzanella Twenty First Century First Responders Protection Act previously passed by the State Senate.  Named for the Deputy Chief of the Hackensack Fire Department and President of the Professional Firefighters Association of New Jersey, the Bill would extend protections to First Responders by creating rebuttable presumptions that exposures to known carcinogens, pathogens, biological toxins as well as serious communicable diseases are considered work related thereby shifting the burden of proof of the employer to show that these conditions were not a part of the employment.  Such a Bill would make it easier for First Responders to receive workers’ compensation benefits.

The Bill is wide ranging in scope covering both paid and volunteer police and firemen, state police, first aid and rescue, nurses, medical technician, correctional facility employees and other medical personnel.  It would require clear and convincing proof that conditions such as exposure to hazardous chemicals or known carcinogens or pathogens are not related to the employment in order to relieve the employer of responsibility for these conditions.

Specifically for firefighters there would be a presumption to that a firefighter who was on the job five or more years who develops cancer, would be eligible for workers’ compensation benefits.  Given the growing evidence that firefighters risk exposure to known carcinogens, this Bill represents a welcome recognition of those risks.  It would also ensure that public safety workers and medical personnel who receive small pox or other vaccinations voluntarily in response to an actual or threatened bioterrorism or epidemic would be covered for any illness caused by those vaccinations.  Passage of this legislation places New Jersey among 24 other states that grants firefighters a presumption in the event that they contract cancer.

The Bill next goes to the Governor to sign or veto.

Stark & Stark attorney Michael A. Brusca in the firm’s Nursing Home Litigation Group authored the article “Assisted Living Facility Litigation: An Overview,” published in the New Jersey Law Journal on May 6, 2013.  The article discusses how and why assisted living facility (“ALF”) litigation is on the rise.

Mr. Brusca explains that ALFs have become profitable for investors, which creates natural tension “especially when profit may be increased by decreasing staff levels and competence.”  There is a lack of a uniform and specific regulatory structure amongst ALFs, which could potentially lead to a significant variation in levels of care and service. 

Mr. Brucsa states, “ALF litigation is on the rise, and there is no inclination that this trend is likely to reverse.  However, understanding how to properly handle these complex claims is important to protecting your client’s rights.”

To read the full article, Click Here.

While an injured worker is out of work under the care of an authorized workers’ compensation physician they are entitled to be paid 70% of average weekly wages if they miss work for more than seven days.  There is always a lot of concern and disagreement over the calculation of the average weekly wage.   Most workers’ compensation attorneys rely on a calculation where the 26 weeks of wages prior to the accident are averaged and multiplied by 70% to calculate the weekly temporary disability rate.  A careful reading of the statute below shows that the 26 week average rate only applied to employees performing piece work, a type of work that is not very common nowadays, not to the average hourly employee.

Therefore it is clear that for hourly employees, the correct way to calculate wage and rate is to determine the customary work week, and the normal rate of pay and multiply to calculate a weekly wage. The above section of the statute seems fairly clear, however there are always important issues that come up in calculating the wage and rate in workers’ compensation cases.  The wage and rate effect temporary and permanency weekly payments,  For any questions regarding the New Jersey workers’ compensation statute please contact Stark and Stark.

Now that daylight savings time is well upon us, it is important to remind you to make sure that you have adjusted your outside lights to compensate for the extra darkness in the morning.  This is especially important for business owners and homeowners.  Most people forget that we suddenly get an extra hour of darkness in the morning when the clocks are moved ahead by the one hour for the time change.  This can mean that public areas that previously were illuminated at a designated time now might be dark for an extra hour unless the owner makes sure to adjust the timer for the outside light.  If this seems trivial, it’s not.  

I have heard of many cases where pedestrians have been severely injured by hazards in public walkways and stairways because the areas were darkened due to a light that did not turn on in the morning at the proper time.  If the lights had just been adjusted to compensate for the extra hour of darkness in the morning as a result of the time change, many of these unfortunate incidents would not have happened.  The same holds true for when daylight savings time ends.  At that time, outdoor lighting should be adjusted to compensate for the extra hour of darkness in the late afternoon.  You should regularly inspect your property during daylight hours and nighttime hours to look for anything that could be hazardous to pedestrians.  The nighttime inspections are important to determine whether outside and perimeter lights are working properly and also to determine whether there are any hazards that would not be uncovered during a daylight inspection of the premises.  With regard to these inspections, it is always better to be safe than sorry.  The extra effort involved in making sure your outside area is safe for pedestrians is well worth it, especially if it prevents someone from getting injured at the property.  

If you or someone you know has been injured as a result of a dangerous condition due to faulty outdoor lighting at someone’s property, give us a call right away.  We can help you if you are hurt as a result of someone else’s negligence.

Stephen Di Stefano is an attorney in Stark & Stark’s Marlton, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Di Stefano.