Personal Injury Law Journal

Arthur H. Kravitz

akravitz@stark-stark.com
609.895.7244

Arthur H. Kravitz is a Shareholder and Chair of Stark & Stark's Workers' Compensation Group. He has over twenty years of experience as a workers' compensation attorney practicing in both the Workers' Compensation Courts and the Appellate Courts of New Jersey. Several cases litigated by Mr. Kravitz have resulted in reported and published decisions, in some instances changing the state of the law in New Jersey, particularly in recognition of the psychiatric disability due to workplace stress.

On May 20, 2013, the New Jersey State Assembly by a vote of 53-19-4 passed the Thomas P. Canzanella Twenty First Century First Responders Protection Act previously passed by the State Senate.  Named for the Deputy Chief of the Hackensack Fire Department and President of the Professional Firefighters Association of New Jersey, the Bill would extend protections to First Responders by creating rebuttable presumptions that exposures to known carcinogens, pathogens, biological toxins as well as serious communicable diseases are considered work related thereby shifting the burden of proof of the employer to show that these conditions were not a part of the employment.  Such a Bill would make it easier for First Responders to receive workers’ compensation benefits.

The Bill is wide ranging in scope covering both paid and volunteer police and firemen, state police, first aid and rescue, nurses, medical technician, correctional facility employees and other medical personnel.  It would require clear and convincing proof that conditions such as exposure to hazardous chemicals or known carcinogens or pathogens are not related to the employment in order to relieve the employer of responsibility for these conditions.

Specifically for firefighters there would be a presumption to that a firefighter who was on the job five or more years who develops cancer, would be eligible for workers’ compensation benefits.  Given the growing evidence that firefighters risk exposure to known carcinogens, this Bill represents a welcome recognition of those risks.  It would also ensure that public safety workers and medical personnel who receive small pox or other vaccinations voluntarily in response to an actual or threatened bioterrorism or epidemic would be covered for any illness caused by those vaccinations.  Passage of this legislation places New Jersey among 24 other states that grants firefighters a presumption in the event that they contract cancer.

The Bill next goes to the Governor to sign or veto.

On December 10, 2012, the Assembly heard testimony and voted in favor of S569, Thomas P. Canzanella Twenty First Century First Responders Protection Act. Named for the Deputy Chief of the Hackensack Fire Department and President of the Professional Firefighters Association of New Jersey, the Bill would extend protections to First Responders by creating rebuttable presumptions that exposures to known carcinogens, pathogens, biological toxins as well as serious communicable diseases are considered work related thereby shifting the burden of proof of the employer to show that these conditions were not a part of the employment. Such a Bill would make it easier for first Responders to receive workers’ compensation benefits.

The Bill is wide ranging in scope covering both paid and volunteer police and firemen, state police, first aide and rescue, nurses, medical technician, correctional facility employees and other medical personnel. It would require clear and convincing proof that conditions such as exposure to hazardous chemicals or known carcinogens or pathogens are not related to the employment in order to relieve the employer of responsibility for these conditions.

Specifically for firefighters there would be a presumption to that a firefighter who was on the job five or more years who develops cancer, would be eligible for workers’ compensation benefits. Given the growing evidence that firefighters risk exposure to known carcinogens, this Bill represents a welcome recognition of those risks. It would also ensure that public safety workers and medical personnel who receive small pox or other vaccinations voluntarily in response to an actual or threatened bioterrorism or epidemic would be covered for any illness caused by those vaccinations. Passage of this legislation places New Jersey among 24 other states that grants firefighters a presumption in the event that they contract cancer.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.

 

The United States Occupational Safety and Health Administration (OSHA) together with the National Institute of Occupational Safety and Health has issued advisories designed to protect workers from exposure to cleaning products which may be hazardous to their health. OSHA has also raised the concern that so called “green” products may not be “green” enough to ensure a worker’s safety.

Workers exposed to cleaning chemicals can suffer from a wide range of medical conditions including coughing and wheezing, red or itchy eyes, skin rashes or burns, shortness of breath, sore throat, headaches or dizziness, nose bleeds or asthma. If you have health problems that you think are caused by using cleaning chemicals, you should tell your supervisor and ask to see a doctor immediately.

Your employer is required to provide a safe workplace which includes adequate ventilation when using chemicals as well as protective clothing, gloves and safety goggles. Cleaning chemicals need to be clearly marked. Employers are required to train employees to know the hazards of the cleaning chemicals before using them how to store them, when and how to dilute them and what to do if there is a spill. It is particularly important to know that mixing cleaning products that contain bleach and ammonia can cause severe lung damage or death.

Many employers and building managers are purchasing “green” cleaning products with the expectation that the “green” cleaning products are safer for workers in the environment. However, just because a chemical cleaner is labeled to be “green” does not necessarily mean it has been certified by an independent organization as safer to use and less harmful to your health and environment. Only those products which are certified by independent organizations can truly qualify as “green” products.  Many of these have met performance standards for its intended use.  Even better, many “green” cleaners are fragrance free but still clean effectively.  However, workers may still need to use protective clothing, gloves or safety goggles with some certified “green” cleaners.  This is why it is very important for employers and employees alike to use the information contained in the Material Safety Data Sheets to know not only what symptom and health problems may be associated with the chemical, but also what type of protective equipment is recommended and what are the proper procedures for cleaning up spills.

If you think you have been exposed to hazardous chemicals, you should obtain the Material Safety Data Sheet and report the exposure immediately.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.

Recently, the Appellate Division of the Superior Court of New Jersey issued an opinion that underscores the continuing problem of disclosure of past medical history by injured workers in workers’ compensation claims.  On July 5, 2012, the Appellate Division upheld an Order of a Judge of the New Jersey Division of Workers’ Compensation denying benefits to an injured worker as well as ordering that worker to repay benefits already paid due to failure to disclose a past medical history.

In that case, an injured worker had an automobile accident and suffered an injury to his knee.  Ten months later, while at work, he suffered a re-injury to that same knee.  It is obvious he didn’t forget about the prior injury to the knee.  However, he failed to disclose to the doctors who were treating him that he had, in fact, injured the knee in a previous automobile accident.  This was compounded by the fact that the worker in question brought a lawsuit for injuries to the knee as a result of the automobile accident.  

The Judge of Compensation decided that the worker in question had committed fraud in order to obtain the benefits and ordered the repayment of lost wage benefits as well as the cost of the surgery to the knee.

This decision places emphasis on the need by injured workers to be candid with their doctors.  In this case, had the injured worker disclosed to the treating physician the prior automobile accident, he may very well have gotten the treatment anyway, because New Jersey Workers’ Compensation law allows benefits to be paid in a case where a work related injury aggravates a pre-existing condition.  He would have given the doctor the opportunity to explore whether, in fact, this was an aggravation of a prior condition.  Had the injured worker been honest with his doctors, none of this would happened.  This case should, however, should be considered in context.  Last year, the Appellate Court found that an omission of two minor injuries, ten years before was considered remote in time and discounted as a factor in a case.

Unfortunately, the insurance industry has developed a “gotcha” mentality when it comes to rifling through an injured worker’s past.  New Jersey Workers’ Compensation Law was designed to be a no-fault system to speed benefits to an injured worker and, as such, was intended to limit the amount of investigation an insurance company could make.  Unfortunately, the insurance industry is now intent on rifling through a worker’s past history going back as much as 20 years.  Recently a firefighter in North Jersey saw his case dismissed because he forgot about a 20-year-old injury.

The Executive Committee of the Workers’ Compensation Section of the New Jersey State Bar Association, of which I am past Chair, recently made recommendations to the Director of the Division of Workers’ Compensation, Peter Calderone, to limit the ability of insurance companies to rifle through an injured worker’s personal medical records without having a basis to make that request.  However, as yet, the Director of Workers’ Compensation has refused to post new rules based on these recommendations.

To an injured worker, what this means is that it is important to provide as complete information as possible concerning the medical past when treating for a work related injury.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.

As part of New Jersey’s Workers’ Compensation System, there is a Second Injury Fund made up of money collected by the State from insurance premiums.  The purpose of the Fund is to encourage the hiring of employees with disabilities, especially disabled veterans, who might be rejected for hire out of an employer’s fear that their preexisting conditions might result in increased employer cost.

Simply put, the Second Injury Fund contributes money to defrayed employers or their insurance company’s cost of benefits to totally disabled workers.  This happens when the total disability is the result of a combination of the preexisting conditions and the work related injury.

Since 1992, 19 states have abolished this fund.  New Jersey’s fund has been depleted by 30 million dollars taken from the fund by the State Legislature and used to balance the State budget.  Now the fund has to borrow money to meet its current obligations.  In New Jersey, there is growing sentiment within the Christie Administration to eliminate the Second Injury Fund or to end benefits at age 65.  This saves the administration the trouble with having to go through the accounting process of borrowing the money from the Treasury Department and paying it back out of collections from the insurance companies and employers.  They claim among other things, that since the enactment of the Americans with Disabilities Act, there is no need for such a fund.  When I began practicing in workers’ compensation many years ago, I represented WW II veterans after reaching middle age had suffered work related injuries which rendered them unable to work in conjunction with their war injuries.  They were deprived of the opportunity to save adequately for retirement.  Since then I have been proud to represent not only WW II veterans but Korean War and Vietnam veterans and obtain for them these total disability benefits.

The time is not too distant when veterans of the Iraq and Afghanistan wars will require the benefit of the Second Injury Fund in New Jersey to compensate them for their inability to earn a wage.  Published studies have concluded that the employment situation for disabled workers has grown worse since the enactment of the Americans with Disabilities Act and, therefore, that cannot be counted upon as a means of encouraging employers to hire the disabled.  These workers see their working career shortened thus depriving them of the opportunity to save for a comfortable retirement.  A second injury fund that limits benefits after a disabled worker reaches 65 years of age will leave these workers destitute.

As such, the answer here is not to limit Second Injury Fund benefits but for the New Jersey legislature to have the will to replace the 30 million dollars that appropriated from the Second Injury Fund to fill gaps in the State budget.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.