Workers’ Compensation and the Unlawful Discharge of or Discrimination Against an Employee for Claiming Benefits

Posted in Workers' Compensation

Did you know that it is against the law for an employer to discriminate against or fire and employee for claiming workers’ compensation benefits?  The law is very clear that an employer cannot retaliate against an employee for filing a workers’ compensation claim.

N.J.S.A. 34:15-39.1 states in part the following:

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workers’ compensation benefits from such employer, or because he has testified, or is about to testify in any WC proceeding. For any violation of this Act, the employer or agent shall be punished by a fine of not less than $100.00 or more than $1000.00 or imprisonment for not more than 60 days or both.  Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of  such discrimination.

In the real world, we find that employers certainly do retaliate against employees for filing workers’ compensation claims, but they generally discriminate in ways that are subtle and cannot be proven to violate the above section of the statute.  In order for an employee to make a claim under this section of the statute they would have to be able to prove that they attempted to make a claim for workers’ compensation benefits, and that they were discharged from employment because of the claim.   If an employee can prove his or her claim, they would be restored to their job and be paid compensation for any missed time.   Keep in mind though that these claims are very difficult to prove because the employer can use some other excuse to cover their unlawful actions.  Under the law, the timing of the firing is significant, however it alone cannot prove an employee’s case of discrimination, and the injured worker must have some real evidence that the firing was related to making a claim for workers’ compensation benefits. If you or a loved on is facing any of these issues, contact Stark & Stark today.

Stark & Stark Recognized in 2015 “Best Law Firms” Rankings

Posted in News & Events

U.S. News & World Report and Best Lawyers announced the 2015 “Best Law Firms” rankings, and Stark & Stark has been recognized with a Tier 1 ranking for  Personal Injury Litigation- Plaintiffs and Workers’ Compensation Law- Claimants in New Jersey. Stark & Stark is honored to have received this recognition.

Rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process, and this year over 17,000 attorneys provided almost 600,000 law firm assessments, and almost 7,500 clients provided more than 40,000 evaluations to help determine the rankings. In order to be eligible for a ranking, each firm to have at least one lawyer listed in The Best Lawyers in America.

For more information about the selection process, please click here.

Guardrails Can Help and Hinder During a Vehicle Accident

Posted in Injury Law, Motor Vehicle Accidents, Motorcycle Injury

Guardrails are a common occurrence.  They are a vital safety component on thousands of highways and roadways across the country.  They are designed to protect vehicles from leaving the road as well as to lessen the severity of a crash.  Many motorists do not even take notice of them.  Guardrail energy absorbing end terminals are designed to lessen the severity of a crash, by allowing the striking vehicle to ride down the crash forces safely, without deflecting the vehicle back onto the roadway.  Since the 1960s, guardrail end designs have evolved from blunt-end terminals, which often acted like spears, penetrating the vehicle compartment, to twist turn-down designs that served as a ramp, causing vehicle rollovers.  Today, the W-Beam guardrail with an energy absorbing end is the most commonly used energy absorption system.  In this design, the end terminal rails deformed away from the striking vehicle, either by flattening, cutting, or kinking the rail.

But what if a guardrail doesn’t provide the protections it is supposed to offer and instead is dangerous?  This exact issue has cropped up in the news recently.

Trinity Industries, a major supplier nationwide of guardrails, was accused of selling systems that can malfunction during crashes and slice through cars.  A jury in Texas recently found that Trinity Industries defrauded the federal government.  The case was brought under the False Claims Act by a competitor who discovered that Trinity Industries made changes in 2005 to its rail head (the flat piece of steel at the front of the system) without telling the Federal Highway Administration, as is required.  A major issue in the dispute concerned the allegation that the design change that Trinity made in 2005 to its ET-Plus rail head caused the guardrail system to fail.  Those changes were not disclosed to the FHWA for seven years, even though the company was required to immediately report those changes.

The company sold the guardrails to state governments that, in turn, received federal reimbursement.  The Texas jury awarded $175 million that will, under federal law, be tripled to $525 million.  In response, Trinity Industries has suggested that it will appeal.

The ET-Plus 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.  But some state officials maintain that the redesigned Trinity produce narrowed the channel behind the head, which can cause it to jam instead of sliding along the rail.  When that happens, the rail can pierce an oncoming vehicle like a harpoon, and cause injuries or deaths to occupants.  A news article states that according to internal company documents, the change was expected to save about $2 on every rail head.

Delaware recently joined 29 other states in banning the installation of the end treatment (also known as a “guardrail head”) of Trinity Industries’ ET-Plus System.

On October 24, Trinity Highway Products, LLC announced that it will stop the shipment of the ET-Plus System until additional crash testing can be completed.  The company has stated it will continue working with the Federal Highway Administration related to further treating and will stop shipment of the product until requested testing is completed.

At least 14 other lawsuits blame the guardrails for five deaths and more injuries, including lost limbs.   A September 18, 2014 study by the Safety Institute questioned the safety of guardrail end terminals, including the ET-Plus.

If you are someone you know has been injured as a result of the ET-Plus guardrail, please let me know right away.  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 large national corporation.  I only represent injured people.  I do not defend or represent insurance companies or defendants in personal injury cases.  So if you have been hurt in an accident due to a faulty guardrail call me right away to discuss your situation.  We’re here to help.

Medical Records, Privacy Rights and Workers’ Compensation Claims

Posted in Injury Law, Workers' Compensation

As an attorney located in Lawrenceville, New Jersey representing injured workers, I struggle with the ethical dilemma of balancing my client’s right to privacy and the workers’ compensation carrier’s right to obtain medical discovery.  The injured worker’s right to confidentiality in medical treatment records is waived in part when they make a claim for physical or mental injuries arising out a work injury in several ways.  It is clear that the workers’ compensation carrier and/or their attorney is entitled to copies of treatment records for treatment arising out of a work injury.  However it is also clear that the carrier is NOT entitled to records for treatment for unrelated conditions.  Since in New Jersey a workers’ compensation carrier is entitled to a credit against any permanency award if an injured worker has a pre-existing disability to the same part of the body injured in the work accident, carriers are entitled to records for related prior treatment.  This does not mean that the carrier is entitled to all prior records for any medical condition.   We routinely receive requests asking our clients to sign medical authorizations so the attorney for the workers’ compensation carriers can obtain the injured worker’s family doctor’s records for the past 10 years.  We routinely say “NO” to these open-ended requests.  We only allow our clients to sign medical authorizations for records that have a reasonable relationship to the current work related injury.  Of course this does include any records for treatment of a prior condition to the same part of the body, no matter when the prior treatment occurred.  And of course the attorney for the carrier must comply with HIPPA laws.  HIPPA is short for the Health Insurance Portability and Accountability Act and can be found at 42 U.S.C. Section 1301.  HIPPA regulates how medical providers respond to requests for medical records, how information is shared with others and how the information is used.  Some common HIPPA violations include the following:

  • Failure to comply with the stated expiration date – You should always set a date when the authorization expires. A medical provider would be committing a violation by releasing medical records for treatment after that date.
  • Failure to promptly release information to patients – According to HIPAA, a patient has the right to receive electronic copies of medical records on demand, and written records are supposed to be provided within 30 days.
  • Improper disposal of patient records – Shred medical records, don’t just put them in the trash!
  • Insider snooping – This refers to co-workers or family members looking at a person’s medical records without authorization.
  • Missing patient signature – Any HIPAA form that is not signed by the patient is NOT valid.
  • Releasing information to an undesignated party – Only the person listed on the authorization form may receive patient information.
  • Releasing unauthorized health information – A patient has the right to release only parts of their medical record, and should be careful to specify which records they want disclosed.
  • Releasing wrong patient’s information – Through a careless mistake a provider releases records for the wrong patient.

At Stark & Stark, we advise our workers’ compensation clients about when they should, and when they should not, disclose their private medical information in the course of our representation.  For any questions about your workers’ compensation issues please give us a call.

 

What Rights Does a Minor Have When Injured at Work in New Jersey?

Posted in Injury Law, Workers' Compensation

New Jersey Child Labor laws restrict the kind of employment, minimum age of those who can work, and the hours that minors under the age of 18 are allowed to work.  This link provides the specifics. New Jersey minors in the workforce are covered by the New Jersey Workers’ Compensation Act (WCA), but there are additional rights they are entitled to as well.

First, if the employer has violated the Child Labor Laws, that employer, not its’ insurance carrier, is responsible to pay extra compensation for awards of permanent disability benefits and or dependency  benefits over and above the amount of compensation provided for in the WCA.  The extra compensation is double the usual benefit payable in accordance with the schedule of benefits.

Second, unlike adults, minors are not barred from suing their employer for negligent acts.  Benefits under the WCA are limited to the payment of medical bills and temporary disability benefits while the injured worker is recovering from the injury.  It also allows for an award of permanent disability if the injury has a permanent impact on that worker’s life.  However, New Jersey workers are not allowed to sue their employer or coworkers in negligence which prevents them from recovering pain and suffering damages.  Minors do not have the same restriction.  A minor may choose to proceed under the WCA or under theories of general liability.  However, if the minor elects to pursue her claim under general liability laws, she is not also entitled to receive an award for permanent disability under the WCA.  An election of benefits occurs once the Employee Claim Petition is file with the Division of Workers’ Compensation or the Complaint in Superior Court.

If you are a minor or the parent or guardian of a minor who is injured at work, please call our experienced attorneys at Stark & Stark  today for a complimentary, no obligation consultation.  We can help you decide what the best course of action is for you under the circumstances of your case.

FMCSA Considers Raising Minimum Levels of Insurance for Motor Carriers

Posted in Trucking Accidents

The Federal Motor Carrier Safety Administration (FMCSA) announced that it is considering a rule making that will increase the minimum levels of financial responsibility for motor carriers, including liability coverage for bodily injury and property damage, establishing financial responsibility requirements with passenger carrier brokers and to implement financial responsibility requirements for brokers and freight forwarders, as well as revising existing rules concerning self-insurance and trip insurance.  The FMCSA is seeking public comments on these topics.

The Federal Government has long required motor carriers, brokers and freight forwarders to maintain certain levels of financial responsibility.  Presently, for-hire interstate general freight carriers are required to carry a minimum of $750,000.  This minimum level of financial responsibility was established in 1980 with the passage of the Motor Carrier Act of 1980.  That minimum level has not been increased over the past 34 years.

It is certainly time that companies that engage in interstate transportation be required to be insured for at least $10 million as was recommended by the Pacific Institute for Research and Evaluation and that the minimum level be indexed for inflation and productivity growth in the same manner that DOT indexes its value of statistical life for regulatory purposes.  There is no reason why companies that put tractor trailers on our highways should not be sufficiently insured to pay claims for damages they cause.

Click here for a link to the FMSCA notice.

Do Construction Workers Have a Meaningful Choice- New Jersey Supreme Court Hears Argument

Posted in Construction Accidents

Construction workers on a job site have no meaningful choice when told by their employers to perform an assigned task.  When a construction worker is injured, while performing his assigned task, should the defense of comparative negligence be a defense in a lawsuit filed by the injured employee against the general contractor?  That is the issue that was argued before the New Jersey Supreme Court last month.

I had the honor and privilege of arguing the case on behalf of the New Jersey Association for Justice as amicus counsel (friend of the court).

Fernandes v. Dar is a personal injury case in which the plaintiff, a plumber, was injured when the sanitary sewer line trench he was excavating collapsed around him.  The trial court refused to submit the issue of the plaintiff’s own comparative negligence to the jury, finding that the defendant failed to introduce any evidence of culpable conduct on behalf of the plaintiff.  The jury returned a verdict on behalf of the plaintiff.

Defendant took an appeal asserting that the trial court committed error when it refused to charge the jury on plaintiff’s comparative negligence and determined, as a matter of law that the plaintiff was not at all at fault.  On appeal, the Appellate Division affirmed, finding that plaintiff did not voluntarily an unreasonably encounter a known risk, a standard which is higher than ordinary negligence.

The New Jersey Supreme Court granted certification to determine the issue as to what standard should apply in evaluating an injured construction worker’s conduct.  I was asked, on behalf of the New Jersey Association for Justice, to file a brief and argue on behalf of its members and future New Jersey construction workers who might be injured on the work site.  It was NJAJ’s position that a construction worker, injured on the job while performing his assigned tasks, had no meaningful choice, i.e., an employee either had to do what he was told to do or faced being fired.  It was NJAJ’s position that in such circumstances, as a matter of law, a construction worker injured on his job, performing his assigned tasks, could not be comparatively negligent.

We all look forward to the Supreme Court’s ultimate decision in the case.

Is Your Car Part of the Takata Airbag Recall?

Posted in Injury Law, Motor Vehicle Accidents

By now you’ve likely heard of the massive recall of defective airbag inflaters manufactured by the Japanese company “Takata”.  The recall involves many automakers from Japan, Europe and the United States, including, but not limited to:  BMW, Chrysler, Ford, Honda, Mazda, Nissan and Toyota.  Reports indicate that the inflators can explode under certain conditions, sending shrapnel flying in the passenger cabin of the car.  A hazard like this is nothing to mess around with!

This recall is not limited to new vehicles, but actually covers vehicles dating to the early 2000’s.  How can you find out if your car is part of the recall?  The National Highway Transportation Safety Administration (NHTSA) has issued a statement which you can use to find the answer which can be accessed here.

As this data is reportedly based on reports made by the manufacturers to date, it would also be advisable for anyone with a car manufactured by BMW, Chrysler, Ford, Honda, Mazda, Nissan and Toyota to contact a dealer to verify whether their car is part of the recall.  If you or a loved one has been injured in an accident involving one of these vehicles, contact Stark & Stark today for your free consultation.

Why We Need More Corporate Regulations and Less Tort Reform

Posted in Motor Vehicle Accidents, Product Liability, Wrongful Death

Ten years ago, Candace Anderson, a 21 year old young woman, was convicted of criminal negligent homicide as a result of a one car motor vehicle crash. Ms. Anderson lost control of her 2004 GM Saturn Ion. Her fiancé, a front seat passenger, was killed in the crash when his passenger side air bag failed to deploy.  Since that time, Candace Anderson, who was sentenced to a $10,000 fine, 260 hours of community service, counseling and five years of probation, has been racked with guilt over the death of her fiancé

This week, Ms. Anderson, was cleared of any criminal responsibility for the crash following the admission by General Motors that her fiancé’s death was due to a defective ignition switch in the Saturn Ion.

Most distressing, is that five months before Ms. Anderson plead guilty, General Motors conducted its internal review of the crash and determined that the crash was due not to the fault of Ms. Anderson, but due to the defective ignition switch.  General Motors never advised Ms. Anderson, her fiancé‘s estate or the Court of its finding. In 2007, GM wrote to the National Highway Safety Administration, falsely stating that it had not accessed the cause of the crash.

GM is not alone. Toyota spent years wrongly blaming sudden acceleration events on drivers. See also the recent stories about Takata and Honda. This is why they want less regulation and more tort reform.  Sort of like terrorists arguing for less security at airports. Bad corporations should and need to be held accountable for their bad corporate choices.

More on this story can be found here and on Facebook here.

New Jersey Supreme Court Hears Argument on Two Bad Faith Cases in Uninsured/ Underinsured Motorist Cases

Posted in Injury Law, Motor Vehicle Accidents

In September, the New Jersey Supreme Court heard argument in two cases, which address the issue of bad faith conduct by an automobile insurer in failing to fairly investigate and resolve uninsured/underinsured (UM/UIM) claims brought by two of its policyholders.

In New Jersey, when a person is injured as a result of the negligence of an automobile driver who is uninsured or is injured, but the person causing the collision has insufficient insurance, a driver or passenger may bring a claim against his/her own automobile insurance carrier for uninsured (UM) or underinsured (UIM) motorist coverage.  Unfortunately, in many instances, automobile insurers treat their own policyholders (insureds) as adversaries and not as insureds to whom they owe a fiduciary duty of good faith and fair dealing.

The two cases, both involving New Jersey Manufacturers Insurance Company, were brought by NJM policyholders who asserted that NJM treated them unfairly and in bad faith.

Unfortunately, under New Jersey law, there is no remedy when an automobile insurance company fails to treat its insureds unfairly when appraising UM and UIM claims.  A successful claimant is not entitled to obtain attorney fees as a result of the conduct of its own insurance company.  Furthermore, because a claimant is only entitled to recovery the amount of its own policy limits, a claimant can never received more than the amount of the coverage which the insured bought.  Thus, insurance companies have no incentive to pay the full amount of the claim even when the claimant’s injuries far exceed the policy limits.  Knowing that claimants will have to expend money to pursue a claim, the insurance companies know that a claimant will be forced to take less than his/her own policy limits. The two cases before the New Jersey Supreme Court seek to hold insurance companies responsible when they fail to timely investigate and resolve meritorious claims.

Attorneys for the insureds rightly argued that such bad faith conduct by insurance carriers is epidemic and that without a remedy to the problem that insurance carriers will continue to mistreat their insureds. What was most astounding, but what plaintiff trial lawyers in New Jersey have long known, was the statement of New Jersey Manufacturers’ (NJM) own attorney, who publicly acknowledged during argument that NJM does not believe that it owes a fiduciary duty to its own policyholders and that its policyholders who make claims under its policies are treated as adversaries.  This was an astounding admission as it is counter to the law in the State of New Jersey.

Hopefully the New Jersey Supreme Court will provide New Jersey consumers with a real remedy when their insurance carriers act in bad faith.