Why my New Jersey Workers ’ Compensation is Paid in Weekly Increments Rather Than a Lump Sum and is There Any Way to Receive it Now?

Posted in Workers' Compensation

Permanent partial and permanent total disability benefits in New Jersey are considered to be wage replacement benefits, so they are paid in the same manner as wages, which is weekly.  These benefits accrue from the date of the last payment of temporary disability benefits.  In many cases, the entire award has not accrued at the time of the settlement hearing and the injured worker will receive payments weekly until the award has been paid in full.  Once the award has been entered, the benefits are due and payable to the injured worker or his dependents should he die during the period of the payout.

In certain rare circumstances, an injured worker may petition the court requesting that all or some of the award be paid in a lump sum.  This process is called a “commutation”.  If the commutation is approved, the benefits are subject to a 5% discount.  It is uncommon for this type of request to be granted.  The standard for granting such a request is if it is in the best interest of the injured worker.

In a recent Appellate Division decision, Jenkins v. LA Fitness, Docket No. A-3570-12T2 (February 4, 2015), such a request was denied.  In that case, the injured worker wanted to expand a food service business.  However, after a hearing, the judge of compensation determined that an acceleration of payments was not in his best interest and denied his request.  The Appellate court affirmed that the commutations are only allowed when it clearly appears that an unusual circumstance warrants a departure from the normal manner of payment.   It is strictly prohibited that a payment would be made to satisfy a debt, or to make payment to physicians, lawyers or others.

If you have concerns about your workers’ compensation benefits, our experienced attorneys and legal staff will be happy to answer your questions.  Please call us today for your free, confidential consultation.

Stark & Stark Attorney Elected to the Board of Directors of One Simple Wish

Posted in Community

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Stark & Stark is proud to announce that Bryan M. Roberts, Esq. has been elected to the Board of Directors of One Simple Wish.

“To me, there is nothing greater than giving an innocent child hope, help and happiness.” Mr. Roberts said of his appointment. “One Simple Wish is an extraordinary organization that has given hope, help and happiness to the most vulnerable members of our local, state and national communities. I am very proud to join One Simple Wish and further their mission.” The not-for-profit is active in 48 states and provides small wishes to children who are in foster care or have been abused and neglected.

Stark & Stark is a presenting sponsor of the Mercer County Park’s Spring Food Truck Fiesta on April 18, 2015. Benefits from this event will go to One Simple Wish.

Tractor Trailer Trucks Safety Issues

Posted in Legal Updates, Motor Vehicle Accidents, Trucking Accidents

Drive on any highway in America, and the chances are good that you will see at least one tractor trailer driving on the same stretch of highway.  They are as ubiquitous as road signs.  They may be called different things: big rigs, trucks, semis, tractor-trailers, but they all serve the same purpose: American commerce and industry.  Without them, society would not be able to function properly.  Fuel, freight, food, clothing, textiles, raw materials, parcels, and packages are just a few of the many items that depend on the trucking industry to get to and from various places across the country.

Most truck drivers operate their rigs safely and efficiently.  Likewise, most truck owners keep their vehicles in top-notch condition, allowing them to travel many thousands of miles without a problem.  There are exceptions, and sometimes an owner fails to inspect, maintain, and service his truck.  When that happens, the consequences can be catastrophic.

Recently, a man was riding in a pickup truck on the highway when a drive shaft broke off from beneath a tractor-trailer in the oncoming lane.  The 20pound metal shaft bounced off the road and crashed through the windshield of the pickup truck, striking the victim’s face and neck.  He lost consciousness, and three hours later, he was dead.  The victim’s estate and his survivors sued the owner of the tractor-trailer, alleging the failure to adequately inspect, maintain, and service the vehicle.  The plaintiffs in the lawsuit presented evidence that the U-joint holding the drive shaft in place had melted because of insufficient lubrication, permitting the drive shaft to rip out of its yoke.  The lawsuit alleged that the U-joint component had not been lubricated for at least four to six months before the incident.  The lawsuit also alleged that the company’s fleet manager established an inadequate maintenance policy calling for the U-joint cross piece to be lubricated every 10,000 miles or two months–whichever was longer–even though the U-joint manufacturer recommended a lubrication interval of every 5,000 miles.  At a deposition and at trial, the fleet manager testified that he had no expertise or special qualifications that would have enabled him to determine the proper lubrication interval and that he did no research to determine the manufacturer’s guidelines.  The plaintiff’s contended that the president of the company that owned the truck knew that the fleet manager lacked the necessary qualifications but allowed him to proceed anyway.  The plaintiffs offered evidence that during the year before the incident, a mechanic at the company knew about as many as 20 other U-joints in the fleet’s trucks that had failed because of inadequate lubrication.  The plaintiffs contended that although the mechanic  reported this to his supervisor, and the mechanic’s supervisor confirmed that the lubrication was inadequate, the company failed to conduct a general inspection of the entire fleet or establish an adequate lubrication policy.

The jury awarded $281 million, including $100 million in punitive damages.  The plaintiffs voluntarily requested and received remittitur, also known as a reduction, in the amount of the punitive damages award to $4.5 million, which was the maximum allowed under Texas law, which is where the trial occurred.  It is possible that the defense may ask the court to issue a new trial, or further lower the verdict, or grant judgment in the defendant’s favor. This case shows how something as simple as adequate lubrication of one part on a truck can cause major safety issues if it is not done properly.

At Stark & Stark, we represent people every day who have been injured in truck accidents and car accidents.  We know what it takes to make sure your rights are protected, regardless of whether the defendant who caused the crash is a small local company or a multi-million-dollar corporation.  I only represent injured people.  I do not defend or represent insurance companies or defendants.

School Bus Accidents

Posted in Injury Law, Motor Vehicle Accidents

According to the U.S. Department of Transportation National Highway Traffic Safety Administration, between 2000 and 2009, 130 school-age pedestrians (younger than 19) died in school transportation-related crashes. Over two-thirds (67%) were struck by school buses, 6 percent by vehicles functioning as school buses, and 27 percent by other vehicles involved in the crashes. There were 56 (43%) school-age pedestrians killed in school transportation-related crashes between the ages of 5 and 7.

Although drivers of all vehicles are required to stop for a school bus when it is stopped to load or unload passengers, many people do not stop.  It is reported that distracted drivers and/or inexperienced drivers simply do not realize that a bus has stopped or that its lights are illuminated.  The reason the bus is not seen does not matter.  Children simply cannot rely on drivers to stop for them pass safely.

Although we would expect our schools to train children safe loading and unloading procedures and schools are actually required to provide such training, many schools do not.  In order to reduce risk to our children, The National Safety Council encourages parents to take it upon themselves to teach their children rules for getting on and off the school bus.  (A copy of School Bus Safey Rules available for parents can be found here.

Even with teaching children about proper loading and unloading procedures, children are injured too frequently.  If your child is injured loading or unloading from a school bus, contact us for a free consultation.

 

Stark & Stark Shareholder, Bruce H. Stern Achieves Recertification with the National Board of Trial Advocacy

Posted in Legal Updates, News & Events, Stark News

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Stark & Stark is proud to announce that Shareholder, Bruce H. Stern has achieved recertification with the National Board of Trial Advocacy. Mr. Stern is focuses his practice on serious personal injury cases such as wrongful death, traumatic brain injury and and spinal cord injuries. Approximately only three percent of American lawyers are board certified by NBTA. Certification through the NBTA is the highest and most reliable honor an attorney can achieve.

New Jersey Red Light Traffic Camera

Posted in Community, Injury Law, Legal Updates

As many drivers know, New Jersey’s red light traffic camera program proved to be a controversial topic of conversation.  Some people felt that the cameras saved lives by reducing the number of car accidents.  Others believed the cameras amounted to too much of a governmental intrusion into people’s private lives, almost like Big Brother watching over you.  Still others shared the view that the cameras did not enhance safety but instead made intersections more dangerous.  Well, as we sometimes say, “the jury is still out” on whether or not the cameras were effective at making the intersections safer.  A 2013 study by the state Department of Transportation (DOT) found that while the number of right-angle crashes (commonly known as “broadside” or “T-bone” collisions) went down at some intersections, rear-end crashes increased.  The report concluded that “it appears reasonable to concluded that RLR is a viable safety tool” at certain locations but that it was too early to draw conclusions on the program as a whole without more data.

There are 76 camera-equipped intersections in 25 New Jersey towns, including in the South Jersey communities of Cherry Hill, Gloucester Township, Stratford, Glassboro, Deptford, and Monroe Township.  The cameras were installed in various municipalities across the state under the Red Light Running (RLR) Automated Enforcement Program, beginning with Newark in 2009.  Although one study showed a reduced number of crashes at intersections where the cameras had been in place at least two weeks, the traffic-camera program itself faced technical problems and lawsuits from the outset.  The DOT temporarily suspended dozens of cameras in 2012 over concerns that yellow light were not timed so that drivers had sufficient time to brake safely.  Since that time, a federal lawsuit settlement awarded partial refunds to nearly 500,000 violators, and this year a computer glitch voided more than 10,000 violations.

The five-year program ended on December 16th, meaning that 73 intersections in 24 towns have now become camera-free.  According to the Insurance Institute for Highway Safety, of the 540 cities and towns across the US that were using red light cameras in 2012, more than 40 had dropped them as of this past November. This does not mean the cameras are necessarily gone for good.  The cameras are still recording violations so the state can collect data.  No tickets will be issued, but the cameras will remain in place.  The DOT is expected to issue a recommendation in 2015 about bringing back the cameras.

What are your thoughts on red light traffic cameras?  Do you feel they made the roadways safer or more dangerous? Have you or someone you know been injured in a car accident at an intersection because the other driver was not paying attention or was driving too fast for the traffic conditions?  If so, call me right away.  We can discuss your situation and determine what your options are.  At Stark & Stark we represent people every day who have been hurt in car accidents caused by someone else’s negligence.  We only represent plaintiffs in personal injury cases, so we know what it takes to make sure your rights are protected.

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.