On August 28, 2015, in the case of Rajpaul v. McDonalds Corp (A-4681-13T4), the Appellate Division reversed the Workers’ Compensation Judge’s order, which had dismissed Mr. Rajpaul’s claim for failure to file a workers’ compensation claim within the two year statute of limitations period. The facts of this case reveal that Mr. Rajpaul worked in maintenance for McDonalds Corporation from 1995 through 2005. Beginning in 1995, he began to experience pain in his shoulders, wrists and elbows. He was seen for shoulder pain at least four times over the years, and in 2001 he was diagnosed with bilateral bicipital tendonitis of the shoulders, which was resolved with treatment. During this time, he never filed a workers’ compensation claim for the tendonitis.
Throughout the year many of us will be traveling with family and friends on vacations from work and the everyday grind. Most of us will stay in hotels or rental homes while vacationing. While you should not get bogged down worrying about the possibility of getting into an accident or mishap while on vacation, it’s still worth noting that accidents do happen, and safety should always be a top priority.
In one recent case, a hotel guest slipped and fell on water surrounding an ice vending machine. The injured guest was later diagnosed as having a bulging disk at L5-S1 with facet joint hypertrophy and lumbar strain. This caused persistent low-back pain with radiculopathy. The pain caused the woman to develop an altered gait, which allegedly caused her to slip and fall down the stairs at her boyfriend’s home about two months later, further worsening her injuries. She underwent a series of 17 pain management injections and physical therapy treatment. She continues to suffer pain in her back, which is worse when she walks or stands for long periods of time.
Stark & Stark Shareholders Bruce H. Stern and Michael G. Donahue, III, both members of the Accident & Personal Injury Group, co-authored the article, The Dangers of Working in the Construction Industry, which was published by NJ.com on September 10, 2015.
The article warns of the many pitfalls that construction workers can face, particularly if contractors fail to maintain safe worksites. In 1979, the New Jersey Supreme Court determined that a worker’s negligence could not be used to reduce the responsibility of the designer and manufacturer of the defective product, even if the worker fails to recognize and/or continues to work with the defective product. This was established in Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, (1979).
They also discuss the more recent case, Fernandez v. DAR (2015), in which the New Jersey Supreme Court “was recently asked to declare that the rule it enunciated in Suter applies to preclude the injured employee’s ‘negligence’ in a workplace construction injury case.”
Mr. Stern and Mr. Donahue both served as amicus curiae for the case, on behalf of the New Jersey Association for Justice (NJAJ). The NJAJ argued that construction workers have no meaningful choice to deny perceived dangers in the workforce, and that “comparative negligence must not be available to those [contractors] who violate safety standards and expose workers to harm.”
You can read the full article by clicking here.
On June 11, 2015, the Supreme Court of New Jersey reversed the Appellate Division’s decision in the Estate of Myroslava Kotsovska v. Saul Liebman case and held that the trial court was correct in awarding wrongful death benefits to the estate. In this case, Ms. Kotsovska was hired by Saul Liebman’s daughter to provide in home care for her father, who was 89 years old. She agreed to cook meals, do laundry and do light housekeeping in exchange for being paid $100 per day, cash. There was nothing in writing to formalize the agreement between the parties.
On December 8, 2008, Liebman and Kotsovska were running errands and stopped for lunch at a local diner. Liebman was driving. He dropped Kotsovska off on the sidewalk in front of the diner while he pulled into a parking space in front of where she was standing. Liebman accidentally pushed the accelerator, causing the car to pin Kotsovska against a wall. Unfortunately, she died from her injuries.
Ms. Kotsovska’s estate filed a wrongful death suit against Mr. Liebman, but did not file a workers’ compensation claim. Liebman argued that the case should be transferred to the Division of Workers’ Compensation for a determination of Kotsovska’s status as an employee versus an independent contractor. Mr. Liebman’s homeowner’s carrier stipulated that the accident arose from Kotsovska’s employment.
The New Jersey courts, like the court in South Dakota, tend to focus on whether horseplay constitutes a major deviation from work when assessing compensability of injuries. In Trotter v. City of Monmouth, 144 N.J. Super. 430 (App. Div.), certif. denied, 73 N.J. 42 (1976) the Appellate Division addressed the issue of major deviation.
In Trotter, the petitioner was a county road department worker. During a break from cutting grass in the summer heat, the petitioner and several co-workers began throwing water at one another to cool off. The petitioner interrupted this water fight by driving a co-workers motorcycle that had been parked nearby on and off county property. The petitioner eventually drove the motorcycle up a hill, lost control of it and crashed suffering various injuries. The employee’s petition was denied by the Appellate Division because:
- The motorcycle was not supplied by the employer;
- The motorcycle was not equipment used in the course of the employer’s business; and,
- The petitioner’s conduct was so far a deviation as to constitute an abandonment of his employment.
When discussing the Trotter case, the Appellate Division turned to Professor Larson’s Workmen’s Compensation Law guidebook, which assesses the gravity of a deviation from employment based upon the following factors:
- The extent and seriousness of the deviation;
- The completeness of the deviation (whether it related to petitioner’s performance of duty or involved an abandonment of duty);
- The extent to which the practice of horseplay had become an accepted part of the employment; and
- The extent to which the nature of the employment may be expected to include some such horseplay.
Unfortunately, the application of the major/minor deviation test is inherently subjective and doesn’t add much order to the chaos. Regardless of the occupation or working conditions, a certain amount of horseplay is always to be expected in any workplace. If the horseplay rises to the level of a major deviation, like it did in Trotter, you can expect workers’ compensation benefits to be denied.
If you have been injured at work, regardless of the cause, and have questions about your rights or what benefits you may be entitled to, please speak with an attorney right away. At Stark & Stark, our experienced attorneys and legal staff can help you understand your rights.
Fast food restaurants are an American staple. Drive down any major highway in the US and you’re bound to see a sign or advertisement for some fast food chain’s restaurant. Although these restaurants can provide tasty meals at an affordable price, they have also been the subject of many personal injury lawsuits over the years. The McDonald’s “hot coffee” lawsuit is one case that many people think of when the topic of fast food restaurant lawsuits comes up. What many don’t realize, though, is that fast food restaurants have been the subject of personal injury lawsuits for other reasons. For example, these restaurants’ floors are often made of tile, which can create dangerous slip hazards to customers.
In one recent case, a woman and her family went to eat at a local hamburger restaurant. As she was walking back from the bathroom, she slipped and fell on grease that was on the floor. She was diagnosed with a back sprain and a contusion to her left elbow. Unfortunately, despite physical therapy, she developed severe, persistent elbow pain. She was later diagnosed with complex regional pain syndrome, a chronic permanent condition that caused her to suffer electric-shock-like pain, swelling, and burning to her arm. Her past medical expenses totaled about $36,000, and her future medical expenses are estimated to be about $359,400.
She attempted to return to her job, but was unable to remain on a reduced schedule and instead went on temporary disability. Her past lost earnings totaled about $94,600, and her future economic loss is estimated around $1.71 million.
Join Stark & Stark Motorcycle Attorneys Chris Pyne, Joel Rosenberg, Deborah Dunn and Domenic Sanginiti, along with a representative from ProRider®, as they answer questions you may have about the differences between an automobile policy and a motorcycle policy as well as carrying proper and adequate insurance coverage. ProRider® will talk about how to apply tried and true riding techniques that are guaranteed to improve your riding ability and riding confidence. Click here for more information.
Friday, September 11, 2015
1:00 PM • 3:00 PM
Saturday, September 12, 2015
11:00 AM • 1:00 PM • 2:00 PM
Stark & Stark Shareholder Michael A. Brusca, member of the Nursing Home Litigation Group, authored the article Read the Fine Print: Pre-dispute Arbitration Language in Long-Term Care Contracts Strips Families of Their Rights, which was published on August 13, 2015 on NJ.com.
The article warns of a “growing and noticeable trend affecting resident contracts for the long-term care industry.” More specifically, this trend is an appearance of more and more families signing pre-dispute arbitration documents. By signing these documents, families of sick and/or elderly patients entering long-term care facilities are essentially signing away their right to a jury trial if anything was to go wrong.
Often, this language is inserted in the admission agreement. If the family does decide to file motions against the nursing facility, they will be forced to do so through arbitration instead, with which the facts of the incident or incidents will be kept confidential and often the awards will be lesser than those in jury trials. Arbitrations are rarely more beneficial for the families than they are the facilities.
Additionally, Mr. Brusca added, “Before you sign, learn as much as you can about your options for protecting your rights and the rights of your family members living in long-term care facilities. At the very least, be sure you consult with legal counsel.”
You can read the full article by clicking here.
The Supreme Court of South Dakota recently found a case involving an employee who was injured while engaging in “horseplay” with a coworker, while at work, to be a compensable. Petrik v. JJ Concrete, Inc., 2015 S.D. 39 (June 3, 2015), involved concrete laborers who had idle time during their work day while they waited for concrete trucks to arrive or for other work to be completed before they could continue their own. Petrik testified at trial that during these lulls in work, he and others often played jokes and tricks on each other.
On this particular day, Petrik and others had completed their work and were waiting for a concrete truck to arrive. It was a hot day and some of them sat in one of the employer’s air-conditioned trucks. Petrik wanted to sit in the truck to cool off, so he told a co-worker that one of the workers on the far side of the work site needed to talk to him. When the co-worker left the truck, Petrik took his seat inside the cool cabin. After a while, he got out and saw his co-worker coming back. Petrik started to run and the co-worker pursued him. During the short chase, Petrik attempted to jump a five-foot wide trench and landed awkwardly and broke his ankle.
Petrik filed a workers’ compensation claim, but this was promptly denied by his employer and insurer, on the basis that his injury did not arise out of and in the course of his employment. Additionally, his employer prohibited horseplay by employees during work hours. The Department of Labor found that Petrik’s injury arose out of the course of employment, but did not occur in the course of that employment. The circuit court affirmed.
Effective September 1, 2015, new child passenger safety laws will go into effect in New Jersey. These new laws were designed with enhanced safety in mind – specifically on improving protections for young children riding in cars. So what are these new rules?
- Every child under 2 years old and weighing less than 30 lbs. must be secured in the back seat of a vehicle in a rear-facing car seat with a five-point harness.
- Every child under 4 years old and weighing under 40 lbs. must be secured in the back seat of a vehicle in a rear-facing car seat with a five-point harness until the child grows larger than the height and weight standards set by the manufacturer.
- After a child outgrows the manufacturer’s height and weight standards, the child may begin sitting in a front facing child seat with a five-point harness.
- Every child under 8 years old and less than 57 inches in height must be secured in a rear-facing or forward-facing child seat with a five-point harness or a belt-positioning booster seat.
- Any child older than 8 years old or taller than 57 inches in height must be properly secured by a regular adult seat belt.