Stark & Stark attorney, Bryan M. Roberts, obtained a $1.6 Million verdict for the victim of a rear-end motor vehicle crash on Route 206 in Montgomery Township, Somerset County, New Jersey. As a result of the November 15, 2010 crash, the plaintiff, then 31 years old, sustained permanent injuries to his mid and low back and continues to receive medical care for his injuries.
This is an interesting case that highlights the distinction between being in the course of employment and pursing purely personal interests at the time of an accident. The petitioner in the case below was a teaching assistant and a graduate student and his research overlapped to some extent. However, the Court found that his accident occurred while he was on a research trip strictly in furtherance of his graduate studies alone.
High Point Insurance Co. v. Drexel University, App. Div. (per curiam) Petitioner High Point Insurance Company, as subrogor of Kevin Smith, appealed from an order entered by the workers’ compensation court. The order dismissed with prejudice petitioner’s claim because it failed to sustain its burden of proof demonstrating employment at the time of the accident. Smith was a Ph.D. student and teaching assistant at respondent Drexel University. On Sept. 2, 2011, he drove a Drexel vehicle to a site in the Pine Barrens to conduct research for his graduate dissertation. When Smith was driving the vehicle back to Drexel, he was involved in a car accident and injured. Smith never filed a claim petition but instead filed an application for personal injury protection for benefits through High Point, the automobile insurance carrier for his parents. After paying the PIP benefits, High Point filed a workers’ compensation petition, as subrogor of Smith, seeking reimbursement of the benefits paid on the theory that Smith was in the course of his employment when the accident occurred. The judge of compensation found that Smith’s accident did not arise out of or occur in the course of his employment because his teaching assistantship was incidental to his education. Petitioner argued that Drexel “entwined” Smith’s personal graduate studies and teaching assignments to such an extent that traveling for his research fell into the category of him performing his prescribed job duty and, therefore, he should be eligible for workers’ compensation. The appellate panel found there was sufficient credible evidence in the record to support the compensation judge’s findings that Smith’s injuries did not arise out of or in the course of his employment. Smith’s Ph.D. program did not require that he work as a teaching assistant. He chose to accept that position to offset the cost of the Ph.D. program. Smith used Drexel’s vehicle to reach the Pine Barrens for his personal research, not to engage in work as a teaching assistant. Moreover, Smith had no teaching responsibilities the week of the accident because classes were not in session.
If you are involved in an accident and you aren’t sure if it would be covered by Workers’ Compensation, please contact one of our Workers’ Comp attorneys for a free consultation.
NABIS is a society comprised of professional members involved in the care or issues surrounding brain injury. The principal mission of the organization is moving brain injury science into practice. Whether it is in the area of clinical care, research, policy or litigation, NABIS stands behind the premise that advances in science and practices based on application of the scientific evidence will ultimately provide the best outcome for those with brain injuries and the community as a whole.
I frequently hear people talk about dealing with their workers’ compensation case on their own. In a perfect world, this would be a simple process, but in reality it can be a tedious and frustrating process that you will need guidance for.
- In most cases you will not be entitled to a cash settlement without seeing a lawyer and filing an Employee’s Claim Petition with the New Jersey Department of Labor. While in some limited circumstances the workers’ compensation carrier will pay you a voluntary offer of settlement, you likely will only get about one-quarter of what your case is actually worth without having a lawyer represent you. You are suing your employer by filing a workers’ compensation claim. You are just getting the benefits you are entitled to under the law.
- You do not know the law and need someone who does so that you can maximize the amount of weekly benefits that you receive after you are injured at work. You are entitled to 70% of your average weekly wages (up to a yearly maximum) from the workers’ compensation carrier as weekly benefits if you are kept out of work by an authorized workers’ compensation doctor for more than 7 days. Without a lawyer checking up on the workers’ compensation carrier, you may receive less that the 70% you are entitled to under the law. This is because your lawyer can make sure that the carrier includes overtime wages when they calculate your average weekly wage.
- You need help getting all of the medical care that you are entitled to under the law. While yes it is true that the carrier has the absolute right to dictate medical care under the workers’ compensation statute, they try to take the cheap way out when they think they can get away with it. The workers’ compensation carrier is allowed to pick your “authorized” doctor, but along with that comes the responsibility to provide everything that “authorized” doctor prescribes. The carrier cannot tell you they will not provide a medication or a referral that the authorized doctor prescribes. They must provide everything their doctor prescribes. If not, a lawyer can file a Motion with the Workers’ Compensation court to get the treatment authorized.
- If you file an official Employee’s Claim Petition with a lawyer and receive a settlement for a percentage of partial disability you will have future rights in your case. You will have two years from the last settlement check within which you can reopen your case if your condition worsens. It generally takes about a year to get to settlement once you complete treatment. If you do NOT file an Employee’s Claim Petition, your claim will close two years from the last date of treatment or the last payment of weekly benefits, whichever is later. If you do file a claim you will have two years from the last settlement check to reopen you claim if your condition worsens (in most cases). The settlement process extends the statue of limitations to reopen in most cases.
- The workers’ compensation carriers often tell injured workers that if they aggravated a prior condition at work their injury is not considered covered under the workers’ compensation law. This is completely false. With the help of a workers’ compensation lawyer you can fight this denial of benefits and get what you are entitled to under the law.
As most riders know, wearing a helmet is mandatory in New Jersey. Not so in Pennsylvania where anyone 21 years of age or older and has been licensed to operate a motorcycle for not less than two full calendar years OR has completed a motorcycle safety course approved by PennDOT or the Motorcycle Safety Foundation can ride without one. Beyond the arguments for or against mandatory helmet laws is the reality of the dangers associated with riding without one. A few years ago, the Philadelphia Inquirer published an article on the Pennsylvania law that permits riders to forgo a helmet and State Representative Dan Frankel’s effort to reinstate a mandatory helmet law.
According to the National Highway Traffic Safety Institute, in New Jersey for the year 2007, there were 85 motorcycle related fatalities of which 82 % were wearing helmets. The National Highway Safety Institute estimated that 42 people’s lives were saved by wearing helmets and that 6 fatalities would have been prevented with 100% use of helmets. In 2008, 82 fatalities with 87% wearing helmets and NHTSA estimates another 42 lives saved because of helmets and 4 fatalities would have been prevented with 100% use of helmets.
In Pennsylvania in 2007 there were 225 motorcycle related fatalities. 46 % were wearing helmets and another 61 people’s lives were saved by wearing helmets. In 2008, 239 fatalities with 49% wearing helmets and another 70 lives saved because of helmets. The NHTSA also estimated that in 2007 45 lives would have been saved and in 2008 45 lives would have been saved if they were wearing helmets.
Across the US there were over 5000 fatalities in both 2007 and 2008 from motorcycle accidents with only 58% wearing helmets. NHTSA estimated that in those two years there were 3615 lives saved by the use of a helmet and another 1627 lives would have been saved if they were wearing helmets. More recently, in 2012, NHTSA estimates helmets saved the lives of 1,699 motorcyclists and that an additional 781 lives could have been saved if all motorcyclists had worn helmets. In states without universal helmet laws, 62% of the motorcyclists killed in 2012 were not wearing helmets compared to 9% in the states with universal helmet laws. Think about that for a minute.
In addition, NHTSA sponsored a study in 1996 to assess the effect of wearing a helmet upon the ability of motorcycle riders to: (1) visually detect the presence of vehicles in adjacent lanes before changing lanes and (2) to detect traffic sounds when operating at normal speed. The results indicate that wearing helmets does not restrict the ability to hear auditory signals or the likelihood of seeing a vehicle in an adjacent lane prior to changing lanes.
I have no reason to doubt these figures. A few years ago while traveling to Court in rush hour traffic on I 95 towards Philadelphia I saw a rider go flying over his handle bars onto the roadway. It was shocking to say the least. I thought he was unconscious. I pulled over the side of the road and watched as he got up. Another motorist an I assisted the rider to the side of the road. He had a full face helmet and a motorcycle leather jacket and blue jeans. He was disoriented and almost lost consciousness a few times. His knees were scraped through his jeans and bleeding. His jacket showed the signs of a serious incident. His helmet showed damage that would have caused a serious injury to a rider without one. Despite his protective gear, I was sure that he had suffered serious injuries. I am happy to report that he called me the next day to tell me that but for his bruised/scraped knees, he was fine. It is clear to me that his helmet and jacket had adequately protected him from more serious harm. As a rider I routinely see other riders in Pennsylvania riding without helmets. In both states it is common to see riders in shorts, sneakers and T shirts. I rode for many years in jeans and a T shirt but always with a helmet. It is great to ride on a warm summer day without the bulk of protective clothing. It’s also dangerous. At many of the rally’s I attend I am often engaged by visitors about their right to ride without a helmet. It’s a debate worth having. What is often overlooked are the true consequences of that action. As indicated above, helmets save lives. That’s indisputable.
What is missing from those statistics are the consequences of sustaining an injury as a result of not wearing a helmet and surviving. NHTSA estimates on a national level we would have saved 2.7 billion dollars in 2007 and 2.9 billion dollars in 2008 if there was 100% helmet use. This of course fails to consider the impact to the rider and their families. Many head injuries are quite serious and have long term consequences, job loss, medical bills and other financial strains. Many of the more serious head injuries lead to long term disability and regular care. We see this regularly when representing injured riders. As many of us in the motorcycle community know, motorcycle insurance provides in most cases no medical benefit and in others, very little coverage. Riders without insurance who suffer serious head injuries become dependent on Federal programs such as SSI and Medicaid. Even people with insurance don’t have enough coverage for a lifetime of care.
I urge anyone reading this to reconsider riding without a helmet. I’m sure the families of those who lost loved ones or who are now watching someone suffer because they were not wearing a helmet would join in my request. Every motorcycle rider understands that there is some danger associate with riding but that doesn’t mean that you should not be prudent and take precautions to minimize your risk.
A recent story in USA Today by Dovie Rice concluded that it should not come as a surprise to Americans that the most hazardous and potentially deadly thing you do every day is to drive your car. Mr. Rice compiled statistics and information from a number of sources to substantiate his conclusion.
The bad news is that the National Highway Traffic Safety Administration has found that there is almost one motor vehicle accident every 10 seconds in the United States. The good news is that only about 25% of these collisions result in injury, and only about 1% resulted in death. While that statistic may seem comforting, if you do the math you realize that approximately 30,000 deaths occur on our nation’s highways every year, and motor vehicle accidents continue to be the leading cause of death for young adults. It is certainly no surprise that the US cities where residents were most likely to have car accidents were the crowded, traffic-choked Northeastern cities, including Washington, D. C., Baltimore, Boston, Providence, Philadelphia, Newark, Hartford, New Haven, Springfield and Worcester, Massachusetts. Midwesterners and Westerners were largely spared this risk – especially the cities with the fewest accidents per capita such as Fort Collins, Colorado, Brownsville, Texas and Boise, Iowa – although San Francisco was one Western city that was found to be especially hazardous. Mr. Rice concluded that the high populations and congested roads, which are often under construction in these Northeastern hubs, were the likely causes of this statistic. Equally unsurprising was his conclusion that male teenage drivers are the most dangerous drivers on the road.
The main reason for car accidents is distracted drivers. “The research tells us that somewhere between 25 – 50% of all motor vehicle crashes in this country really have driver distraction as their root cause,” said Mark Edwards, director of traffic safety at the American Automobile Association, in a conversation with Sixwise, an online newsletter. Driver fatigue, drunken driving, speeding, aggressive driving and weather are other top causes for motor vehicle accidents. In fact, more than 7000 Americans die in weather-related wrecks every year our nation’s highways each year. According to the Federal Highway Administration, which defines “weather-related crashes” as those that occur in adverse weather such as rain, sleet, snow or fall, or on slick pavement.
Mr. Rice’s excellent article reminds us that motor vehicle operation is a very serious endeavor which requires powerful concentration, attention and focus. If you or a loved one have been injured as a result of someone’s negligent driving, you should contact your attorney immediately.
Stark & Stark attorney, Bryan M. Roberts, obtained a $1.3 Million settlement for a surveyor who was injured in a roadway construction site on Interstate 287 in Somerset County when she was struck by a utility vehicle travelling in reverse. As a result of this traumatic event, the plaintiff suffered permanent brain and orthopedic injuries. The plaintiff filed a complaint against the driver of the utility truck, Crisdel Group, Inc., the employer of the driver and the general contractor on the project, and the State of New Jersey, the owner of the project.
Most recently, Mr. Roberts obtained a $1 Million settlement for a union worker that was injured on a roadway construction site in Hudson County where he was crushed in a trench collapse. As a result of this incident, the plaintiff suffered permanent orthopedic and urologic injuries. The plaintiff filed a complaint against Tarheel Enterprises, Inc., the general contractor, Applegate Associates, LLC, a safety contractor, and the State of New Jersey, the owner of the project.
Another brutal winter has resulted in minefields of potholes on our roadways. As the weather warms and we unplug our battery tenders to take to the highways, there are serious dangers lurking for the unwary. Riders always ride with a level of concentration greater than those operating cars – and we must. One of the challenges with potholes is that they can be difficult to spot until it’s too late. Obviously the greatest danger is at night when they are the most difficult to see. Even when using the utmost caution during the daytime, sunlight, shading and traffic can obscure the danger.
Pothole accidents can and do cause serious injury. What makes those accidents even worse is the difficulty riders have in getting fairly compensated for their property damage and bodily injury. As motorcycle attorneys, we have in the past and currently have these types of cases in both New Jersey and Pennsylvania.
Both states have Tort Claim immunities that effect a riders right of recovery against the State to be compensated. One of the most urgent issues involved in these cases is proper notice to the state after an accident known as a Tort Claim Notice. If these notices are not timely filed, a rider can lose all rights to make a claim. In addition, early investigation to document the condition of the roadway that caused the accident is vitally important in protecting the rights of an injured rider. If you or someone you know was injured in an accident caused by a defective roadway, don’t hesitate to call us at 855-BIKELAW for a free consultation.
A recent report from the Governors Highway Safety Association points out some very disturbing statistics regarding fatal bicycle accidents. The GHSA represents state transportation safety agencies and this report, authored by Allan Williams, is a cause for concern among its member agencies. The most disturbing fact was the news that the number of US bicyclist killed in traffic accidents actually increased in 2011 and 2012. Fortunately, there is an overall decline in cycling fatalities stretching back into the 1970s. The report noted that 722 American cyclists died in motor vehicle crashes in 2012, an increase of 42 deaths over the 2011 statistics, and an increase of 101 over the 2010 reported cyclist deaths. This is an increase of 16% over those two years, and during that same time period, motor vehicle deaths increased by 1%.
The report found that most of the cyclist deaths considered in the three-year period of the study occurred in California, Florida, Texas, New York, Illinois and Michigan. The author concluded that the states are high population states with many urban areas, and the statistics likely reflect a high level of bicycle exposure and interaction with motor vehicles. The report supported this conclusion, finding that 69% of 2012 deaths occurred in urban areas, and more than one in three occurred at intersections.
Are you still covered by New Jersey workers’ compensation benefits? The answer in New Jersey is generally “YES.” The workers’ compensation law in New Jersey is much more lenient on these types of issues than in our neighboring state of Pennsylvania. In a recently publicized workers’ compensation case in Pennsylvania, a manager of a liquor store was robbed by a masked man who put a gun to his head and duct taped him to a chair during a robbery. The worker experienced post traumatic stress disorder as a result of this robbery, but was originally denied workers’ compensation benefits by Pennsylvania’s Commonwealth Court because his employer’s workers’ compensation carrier argued that robberies are a “normal working condition” that do not require the carrier to pay benefits. The carrier argued that there were 99 robberies at State Liquor stores in the Philadelphia area from 2002 to 2007, and that responding to a robbery is a normal part of a liquor store manager’s job. The Pennsylvania Supreme Court ultimately overturned the lower court’s decision denying benefits and ordered the court to reconsider this case stating that the courts should pay attention to specific circumstances of each claim before applying the “normal working condition” exclusion. The result was that the court ultimately found in the worker’s favor because experiencing the kind of trauma at work that this man experienced was not “normal working conditions.”
The law in New Jersey is different from Pennsylvania in this area. We do not have this exclusion for “normal working conditions” in New Jersey for this type of situation. If a worker here sustained emotional trauma because of a robbery that took place on the job there is no question that they would be eligible for the same types of benefits that a person who sustained a physical injury would get. I have handled several New Jersey workers’ compensation cases over the years where the person has sustained emotional trauma because of a robbery or attack at work, and my experience has been that workers’ compensation carriers may delay benefits, but ultimately they do the right thing. This type of situation in New Jersey would be considered objectively stressful and peculiar to a particular workplace, and would be compensable as long as the work experience had a material impact on the worker’s psychological condition. If you feel you have been unfairly denied a workers’ compensation claim, we recommend you consult with experienced legal counsel to discuss your options.