Workers’ Compensation Changes for the Year 2015

Posted in Workers' Compensation

Effective Jan. 1, 2015, the maximum weekly benefit for work related injuries increased from the maximum rate of $843 in 2014 to the maximum rate of $855 in 2015.  This weekly benefit rate is the maximum dollar amount an injured worker can receive if the worker is kept out of work by the authorized workers’ compensation doctor for more than seven days.  The rate is calculated as 70% of the worker’s average weekly wage, subject to the above mentioned maximum rate cap. The minimum weekly benefit will increase from $225 to $228.  The minimum rate is the lowest amount of money an injured worker will be paid while he or she is out of work, under the care of the authorized doctor, after missing at least seven days of work.  This money payable to the injured worker is tax free and is not declared as income on either State of New Jersey or Federal tax returns.

In cases involving permanent partial disability awards, the 2014 weekly benefits ranged from $225 to $843.  The rates varied based on the nature and extent and type of partial disability.  This will increase in the year 2015 from a low of $228 to a maximum rate of $855, respectively.  Permanent total disability is 70% of wages, subject to a maximum of $855.00 a week as described above.

What has not changed in 2015 is that permanent partial disability awards in New Jersey remain tax free and are not declared as income on either New Jersey or Federal tax returns. What is permanent partial disability in New Jersey?  It is defined in the case of Perez v. Pantasote  and in N.J.S.A 34:15-36 as follows:  Permanent partial disability requires proof of disability by demonstrable objective medical evidence of loss of function of the body and proof that the injured worker has suffered a lessening to a material degree of his or her working ability, or that the disability is serious enough to effect other aspects of life outside of work.  You are still entitled to a permanent partial disability award even if you return to your same job after your injury, as long as you can prove loss of function and its effect on your job or home life.  To obtain the maximum award possible it is recommended that you seek the services of an attorney who can file a formal workers’ compensation claim petition with the New Jersey Department of Labor. If you have any questions about your right to a permanent partial disability award, please call the workers’ compensation lawyers at Stark & Stark for a free consultation.

Real & Potential Dangers for Uber Users

Posted in Community, Injury Law, Legal Updates

In 2009, the San Francisco based ride sharing app, “Uber,” was founded.  When the app was launched in 2010, it changed metropolitan travel.  As of December 16, 2014, Uber was available in 53 countries and more than 200 cities worldwide.  For anyone unfamiliar with Uber, it is a mobile app that allows users to submit a trip request which is sent to crowd-sourced taxi drivers.  Without a doubt, the rise of Uber marks an exciting alternative to the traditional yellow cab when it comes to getting from Point A to Point B in most major U.S. cities.  However, along with the many benefits to Uber come both real and potential problems for Uber customers and the public.

First, Uber has come under fire because of safety concerns associated with the manner in which Uber drivers are notified of fares.  When a customer submits a ride request from their mobile phone, Uber routes that request to drivers on the street.  The Uber driver then receives a message on their mobile phone, alerting them of the fare.  The driver then has 15 seconds in which to respond to accept the ride request.  Drivers may be temporarily suspended from Uber for ignoring these ride requests on their cell phones.  The obvious safety concern involves the distraction caused to the Uber driver by the company’s cell phone notification system, which presents a financial incentive to drivers to respond to cell phone requests while driving.

On New Year’s Eve in 2013, a six-year-old girl, Sophia Liu, and her mother were struck by an Uber driver in San Francisco.  Tragically, the young girl was killed.  The family filed suit against Uber asserting that Uber is responsible for the crash because its app is distracting to drivers and leads to inattention while driving.  Specifically, the suit alleges that Uber drivers “must respond quickly to a user request for service by physically interfacing with the app, thereby leading to distraction.”

You don’t need an expert to tell you that distracted driving is unsafe.  It is a major cause of car wrecks in the United States.  One of the questions that has arisen alongside crashes involving Uber drivers is whether Uber will take financial responsibility for the negligence of its drivers and provide compensation for injured victims of distracted driving.

There is currently concern that innocent people who are injured in car crashes caused by Uber drivers may be denied compensation when both the driver’s private insurance company and Uber’s insurance carrier deny or disclaim coverage.  The problem is that Uber does not operate like a traditional taxi cab company, which would be required to carry commercial auto insurance for its fleet of cabs.  Uber often hires private car owners to transport Uber customers.  These drivers may or may not have their own private auto insurance policies.  The risks associated with taking a ride from an uninsured driver are obvious.  However, even Uber drivers who have private auto insurance may not actually have insurance coverage for their customers because most private auto insurance policies contain exclusions for commercial use of the vehicle.

When that happens, the injured customer looks to Uber for coverage under its $1 million insurance policy.  Unfortunately, Uber’s insurance policy may be deemed “excess” coverage, which is only triggered once the Uber driver’s private insurance policy is exhausted.  Currently, there is dispute over whether an “excess” policy, such as Uber’s, would provide any coverage for an uninsured Uber driver or for an insured Uber driver whose private policy excludes coverage for commercial use of the vehicle.  This issue will surely be tested in courts across the country in the months and years to come, as it appears Uber isn’t going anywhere anytime soon.

The point to take away is that with all of the pros associated with Uber and other similar ride-share apps (e.g., Haxi, Lyft and Sidecar), there are some very real and other potential risks you should be aware of before hopping into the car.  Your safety is nothing to gamble with, so ask your Uber driver if his Uber app is open on his cell phone.  If it is, ask him if would mind not checking it while he is driving you to your destination.  Asking for safety and peace of mind is not an unreasonable request.  Also, you may want to ask if the driver has commercial liability insurance.  If the answer is no, at least you will be able to make an educated decision.  Do you want to take the ride and accept the risk that you would not be compensated for any injuries you sustain if there is a crash?  Or would you rather not risk it and hail a good, old fashioned yellow cab instead?  No matter what you choose, now you’re better prepared to do what you have to do to stay safe out there.

Workers’ Compensation Case Law Update

Posted in Injury Law, Workers' Compensation

In 2014, the Camden County Bar Association’s Workers’ Compensation Committee presented a seminar on the topic of commuting injuries in workers’ compensation cases.  As co-chair of this committee, I was one of the speakers.  This seminar focused on the Premises Rule and the many exceptions to that rule.  The “Premises Rule” came about as the result of amendments to the workers’ compensation statute in 1979.  This “Rule” basically stands for the proposition that employment commences when the employee arrives at the employer’s premises and ends when the employee leaves the employer’s premises at the end of the work shift.  This rule by definition excludes areas that are not under the control of the employer.  The intent of this rule was to eliminate the many exceptions that were carved out by the Court in commuting injuries prior to 1979.

However the state of the law now is that more exceptions have been carved out of the premises rule, and the Courts are once again regularly being asked to rule on commuting injuries.

For example, the new case of Kotler v. DCH Kay Honda focuses on a situation where a worker was severely injured on his way home from an emergency work shift.  Mr. Kotler was called in to work by his employer on the day after Christmas, a Sunday, to move cars around in the Honda dealer’s lot because of an impending snow storm.  The car dealer was always closed on Sundays, and Mr. Kotler was a sales person, not a car jockey.  However he felt obligated to come in to help that Sunday because he was a new employee and was asked by his boss to come help move cars to get them out of the way of the storm.  He did go in to help, but left after a few hours because it had started to snow, his own car was not good in the snow, and his boss gave him permission to leave.  The governor ended up declaring a State of Emergency that day because of the snow, and Mr. Kotler’s car skidded on the way home causing significant injuries.  The workers’ compensation Judge agreed with Mr. Kotler, that he felt “compelled” by his boss to be at work that day, and thus the commute home should be covered under the workers’ compensation act.  On appeal, the Appellate Division found that this accident was just like any other commute home and held that it was not covered under the workers’ compensation act.  Mr. Kotler appealed to the Supreme Court of New Jersey and we are waiting to see if they will re-consider this case.

Another case along these lines is Sager v. O.A. Peterson Construction Co, which also went all the way to the New Jersey Supreme Court.  In the Sager case, the employee was working on a job site in New York City on 9/11/2001.  The work crew could not return home to NJ because of 9/11, and the supervisor decided that his crew would find a place to go out to dinner and then return to the work site.  While returning to the job site from dinner Mr. Sager was in a head-on collision and was injured.  The Supreme Court held that Mr. Sager felt compelled to follow his supervisor’s orders to go to dinner and then return to work, and that his injury was covered under the New Jersey Workers’ Compensation Act.

 

Hurt at Work? Be Careful What You Post Online

Posted in Injury Law, Legal Updates

If you have been injured at work and suffered a permanent injury, what you put on the internet can hurt your attempts to obtain medical treatment, out of work benefits, and even a settlement for your injuries. Insurance carriers are using the internet as an investigation tool to weed out potential fraud.   If you are injured at work and have any physical limitations, it is extremely important to avoid posting any pictures or statements that contradict your injuries. The general rule of thumb I tell clients, is that you should not be doing anything you tell a doctor or your employer you can’t do or that your doctor tells you not to do.

If you have any doubts that insurance carriers and Investigators are using the internet to conduct surveillance, I recently received an e-mail notice for a seminar entitled “The Insider’s Guide to Social Media Investigations.”  The seminar is designed to teach attorney’s how to obtain information on a ‘Target’ by using Social Media resources such as Twitter, Instagram and Facebook to investigate plaintiffs and injured workers. This is going to become more common, not less common. For many reasons, it is important to control what information is out there, whether it impacts a potential case or not.

The privacy settings for any accounts that you have should be restricted so that only people you know and trust can see your posts. If a family member or friend is posting pictures of you online, you need to also make sure the privacy settings apply to those pictures. Even posts from before an injury can cause you a problem. Let’s say you injure your knee at work, and after the accident, you decide to post a picture from a 5K race you ran in before the accident. The first thing that will happen is the adjuster will see this picture and think that you’re committing insurance fraud. It won’t matter the picture is from a year before your accident, because the adjuster will have no choice but to cut off your benefits, as the picture makes it look like you’re more capable than you are.

This free surveillance, an insurance carrier or potential employer can gather information about you before even hiring a private investigator. It goes back to my initial advice, you should not perform any activities that you are telling your doctor, employer or an insurance carrier you cannot do. This can cause a great deal of stress in your life, by disrupting medical treatment, temporary benefits, and could result in termination by your employer if there is reason to believe you have been less than truthful. The simple way to find out what’s out there is to conduct a Google search on yourself from a computer that is not already logged into your accounts, this will show you what accounts and posts are out there and then the ones that are viewable to the public. The bottom line is that you can protect yourself and your family by controlling the information that’s put on the internet.

Top Ten Causes of Workplace Injury

Posted in Construction Accidents, Injury Law, Motor Vehicle Accidents, Slip and Fall, Workers' Compensation, Wrongful Death

A recent article in Insurance Journal lists the top 10 causes of workplace injuries based on 2012 Liberty Mutual claims data for injuries lasting six or more days.

The ranking is based on total workers’ compensation costs but it is interesting to note the leading causes of injuries in this study. If I were to rank the types of injuries/causes of injuries I see most frequently in my own practice, I would have a very similar list. Particularly in the Winter months we see an increase in slip and fall injuries and motor vehicle accidents, but we also see a consistent number of cases where the injuries are based on overexertion. The article points out that the leading cause of injury on the list, overexertion, was typically related to lifting, pushing, pulling, holding, carrying or throwing. Other exertions, which came in at number five, includes injuries due to bending, crawling, reaching, twisting, climbing, stepping, kneeling, sitting, standing or walking.

10 Leading Causes of Workplace Injuries in 2012:

  1. Overexertion
  2. Falls on same level
  3. Struck by object or equipment
  4. Falls to lower level
  5. Other exertions or bodily reactions
  6. Roadway incidents involving motorized land vehicle
  7. Slip or trip without fall
  8. Caught in/compressed by equipment or objects
  9. Repetitive motions involving micro-tasks
  10. Struck against object or equipment

At Stark & Stark, our Workers’ Compensation lawyers dedicate their practice to representing injured workers. If you or someone you know is hurt at work, please call our experienced attorneys today for a complimentary, no obligation consultation.

Be Careful of Trip Hazards and Slip Hazards Inside and Outside

Posted in Injury Law, Motor Vehicle Accidents, Slip and Fall

Now that winter is well underway, it is important to remind everyone to be careful not only when walking outside but also to be cautious when walking inside places, especially public buildings.  Ice and snow on a customer’s shoes can easily become a major slip hazard when it gets tracked into a supermarket, retail store, restaurant or other public space.  Snow from someone’s shoes or boots will easily melt on the floor, causing a hazardous condition for others.  Rock salt and various snow-melt substances also have a tendency to be tracked inside and also can cause you to lose traction and slip and fall.  Always be extra careful when walking inside a public space.  The floor could be slick from being freshly mopped or waxed.  A mat or rug put on the floor to soak up the water from people’s shoes can easily become a trip hazard if it bunches or rolls up as people walk over it.  We have all heard of people falling as a result of wet floors, but what about wet carpets?  That also is a hazard, and the consequences can be catastrophic.

One such example of this occurred recently when a woman accompanied her friend to a hospital emergency room.  While at the hospital, the woman walked across a carpeted area.  Unbeknownst to her, a carpet cleaning company had recently sprayed the carpet with a soapy shampoo.  The women then slipped and fell on the adjacent vinyl flooring, striking her head in the fall and suffering life threatening injuries.  The woman sustained suffered an acute subarachnoid hemorrhage, and, as a result, she spent several days in intensive care and was unable to care for herself for several weeks.  She now suffers from lost sense of smell.  Her medical expenses were about $79,000.  The victim sued the custodial contractor who was responsible for shampooing the hospital’s carpets.  She alleged that it failed toe place warning cones near the wet carpet and should have placed towels and mats at the edge of the carpet so that passersby could dry their feet.  The parties settled for $475,000.

So the next time you are going inside any building, make sure to pay attention to what you are walking on and be certain to walk carefully.  Be aware of your surroundings and always be on the lookout for spills, debris, bunched mats or rugs, and other slip or trip hazards on the floor.  If you do see a dangerous condition, report it right away to security and management.  You may want to photograph the condition to document it to management, especially if the management or security is offsite or is unable to immediately inspect or correct the condition.

If you or someone you know has been injured in a trip and fall or slip and fall because of a dangerous condition inside a building, let me know right away.  Here at Stark & Stark we have the experience and resources to make sure your rights are protected.

 

Guardrail Manufacturer Saves Money But Puts Drivers at Risk

Posted in Legal Updates, Motor Vehicle Accidents, Motorcycle Injury, Trucking Accidents

A Texas Jury found that a highway guardrail manufacturer, Trinity Industries, deliberately withheld information and defrauded the government and awarded damages in the amount of $175 million dollars, which, under federal law, will triple to $525 million dollars. The dispute centered around a design change Trinity made in 2005. During the discovery phase of the litigation, an internal document was uncovered which showed that a Trinity official estimated that making a modification to the guardrail which reduced a piece of metal from 5 inches to 4 inches would save the company $2 per guardrail. However, experts found that this modification made the guardrails more dangerous to motorists. The guardrail system works by collapsing when hit head-on, absorbing the impact of a vehicle and guiding the railing out of its path. The rail head or end terminal, which is often marked with yellow and black stripes, is supposed to slide along the guardrail itself, pushing it to the side. This modification was to the end terminal, and when struck from the front end, rather than absorb the car’s impact, it would spear straight through the car and its occupants. Even though Trinity was supposed to advise the government that this modification was made, these changes were not disclosed for 7 years. At least 14 other lawsuits blame the guardrails for five deaths and more injuries. Some states have gone so far as to ban further purchase of these guardrails, citing safety concerns.

Unfortunately, this case is an example of the dangers of when companies place profits over safety. If you, or someone you know, has suffered injuries from a defective product, or would simply like more information about product liability, please contact us. Stark & Stark has many experienced attorneys who specialize in products liability matters.

Cardiovascular or Cerebral Vascular Accidents Under the New Jersey Workers’ Compensation Statute

Posted in Workers' Compensation

Cardiovascular or cerebral vascular accidents can be compensable under the New Jersey Workers’ Compensation statute.  The courts have held that the mere fact that a heart attack, stroke or other cardiovascular accident occurs at work does not make it work related.  A worker or his dependents must show that the injury or death was produced by the work effort or strain in excess of the wear and tear of the claimant’s daily living.  A recent Appellate Division decision confirms this standard, see James P. Renner v. AT & T (A-71-11) Decided July 30, 2014.

This case involved an employee of AT & T who telecommutes from her home several days each week.  The day before her death, she was working on project with a looming deadline. As such she had stayed up late working into the night and was working early the next morning too.  She reported not feeling well to a co-worker around 9 am, but agreed to keep working on the project.  Within a few hours, she had called an ambulance.  She complained of choking and difficulty breathing.  She did not survive.  The experts agreed that the cause of death was a pulmonary embolism; however, they disagreed as to the cause.

Her husband filed a claim seeking dependency benefits under the workers’ compensation statute.  The doctor for Mr. Renner testified that his wife’s work effort contributed, in a material degree, to the development of deep vein thrombosis that precipitated the pulmonary embolism and her demise.  He stated that her work required her to sit at her desk and that the day before her death was the precipitating factor.  The doctor for AT & T state that she had multiple risk factors (including morbid obesity, enlarged heart and birth control pill use) for the embolism’s formation and it would be impossible to state that her cause of death was related to her work effort.  The Court held performing a job that requires sitting for long periods of time in one position, does not necessarily rise to the level required by law.  She was not confined in a cramped space and was able to change positions and move about while working.  She could take breaks, stand, and stretch or briefly exercise.  Therefore, Mrs. Renner’s death was not caused by her work effort or strain involving a substantial condition or event.

There are circumstances where the work effort is substantial and can be a significant contributing factor to injury or death.  However, identifying situations that meet the strict standards in New Jersey, takes an experienced attorney.  If you think you or a loved one may qualify for workers’ compensation benefits in New Jersey, please call Stark & Stark, PC to speak to one of our attorneys today.

Link Shown Between Traumatic Brain Injury in Childhood and Behavioral Issues

Posted in Injury Law, Motor Vehicle Accidents

A new study published in the September, 2014 edition of the journal “PLOS ONE”, offers further support for the existence of a connection between suffering a brain injury at a young age and a variety of serious problems, including behavioral problems.  While studies have long noted a variety of long term consequences, including variations in how a person’s gender may impact upon the effects manifested from traumatic brain injury (TBI), this new study was particularly focused upon TBI in young persons in an effort to identify whether the person’s age, or a combination of age and gender, may impact the manifested effects of TBI.

The researchers examined data collected from over 9,000 students enrolled in grades 7-12 and focused on persons who had suffered a head injury which resulted in an overnight hospitalization or a period of unconsciousness of at least five minutes.  Given the recent media attention to TBI lately and the apparent link between participation in contact sport and TBI, it is perhaps not surprising that the researchers found “team sports” as the most common reported cause of TBI amongst the study’s participants.

The results reportedly “indicate that adolescents with TBI are vulnerable to a range of psychological and behavioral harms that co-occur with their history of a TBI,” such as suicidal ideation, smoking, and drug use. Due to limitations on the study, including the fact that the data reviewed was limited to the participants’ self-report, the researchers were not able to gather meaningful data on the severity of the TBIs suffered by the study’s subjects.  As such, the potential impact of TBI severity remains an open question with regard to the results of this particular study.

Each year millions of people are subjected to brain trauma suffered in accidents of varying kings, including car accidents, bicycle accidents and other incidents.  TBI can produce devastating life impacts.  Personality changes, impaired memory, violent outbursts, sleep disturbances, and other life changing consequences are frequently seen in the victims of TBI.  If you or a loved one have been involved in an accident and have noticed such effects, we urge you to seek medical attention and the assistance of an attorney.  If you or a loved one have been affected by a brain injury, contact Stark & Stark today for your free consultation.

If I am Hurt at Work and Lose my Job While I am Recovering, am I Eligible for Unemployment Following a Period of Disability?

Posted in Legal Updates, Workers' Compensation

The Appellate Division recently addressed this issue in the matter of Wilson v. Board of Review (Docket No. A-4874-12T4, November 6, 2014).  In this case, Mr. Wilson suffered significant spine injuries when he fell from a ladder.  He underwent two spine surgeries and was out of work receiving workers’ compensation benefits from January 10, 2011 to January 26, 2013.  When his doctor released him to return to work, it was with permanent restrictions and his employer was unable to accommodate that restriction.  The court ruled that under these circumstances, he was not eligible for unemployment.

The Court’s decision turned on two important factors.  First, in order to be eligible for unemployment benefits an individual must have sufficient earnings or wages during his “base year”, which is the first four of the last five complete quarters immediately preceding an individual’s benefits year.  A base year is calculated based upon the date of filing the claim for unemployment benefits.  In this case, Mr. Wilson had not worked within the last year and therefore he was unable to establish eligibility.

Second, an alternate base year can be used to establish eligibility in the case of a worker who was injured at work.  In the case of a work related injury, the “base year” is calculated by using the first four of the most recent five completed calendar quarters preceding the date his disability began.  The catch is that the alternate base year cannot be used if the individual is no longer able to perform the duties of his last position AND the individual did not receive workers’ compensation benefits in excess of two years.  Mr. Wilson was both unable to perform his job duties and had received workers’ compensation temporary disability benefits for just over two years when he applied for unemployment.

Unemployment benefits are often the only source of income available to injured workers who lose their job due to a work related injury.  To navigate the Department of Labor’s resources available to injured workers’ you may want to seek legal counsel.  If you are injured at work and need answers to questions like this, please call our experienced attorneys for your free, confidential consultation today.