Personal Injury Law Journal

The New Jersey Workers’ Compensation Statute section  N.J.S.A. 34:15-17 requires injuries to be reported within 90 days of a work accident.  A recent case, Ader v. Lebanon Township, addresses this section of the statute, and confirms the importance of reporting accidents within 90 days. This section of the statute is designed to give the employer the benefit of timely investigation into the accident.  The employee in the above case waited 15 months to report his injury to his employer, and thus was denied workers’ compensation benefits by the court.

The employee worked as a volunteer EMT for the Township of Lebanon.  On November 18, 2008, this employee climbed onto the back of a tow-truck to investigate an accident, and when he jumped off of the truck he felt pain in his low back.  He did not report this accident to his employer or request medical care.  A few weeks later he felt pain in his hips so he went to his own doctor and spoke about the work incident jumping off of the truck, but not until two months after the accident.  Eleven months after the accident his own doctor sent him to a surgeon who diagnosed a serious condition that would require hip replacements.  The employee told the surgeon about the pain he experienced after jumping off of the tow-truck at work.  The employee finally reported the accident to the Township in February of 2010.

The Township denied the claim on the basis of the above “Notice” statute, and took the position that this employee waited too long to report his injury.  The employee’s position was that he really did not know his condition was work related until the surgeon told him so.  The Court rejected his argument, and found that the employee knew he was injured on November 18, 2008, or shortly thereafter, and held that he should have reported the event to his employer within 90 days.  He certainly knew of the relationship when he saw his own doctor a few weeks after the accident.

This recent case shows how important it is to notify your employer as soon as possible if you get injured at work.  Even if you do not feel you need medical care immediately, it is still best to cover yourself by letting your employer know you were involved in an accident.  And certainly the minute you feel you need medical care you must let your employer know you were injured at work, and ask for medical treatment.  Then call Stark & Stark and we can help you through the process.

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Ms. Jordan.

As I had advised in a past blog post, the receipt of Medicare benefits by a workers’ compensation claimant can significantly delay the settlement process in a workers’ compensation case.  Under the Medicare Secondary Payer Act, anyone who is eligible for Medicare must contact Medicare prior to settling a workers’ compensation claim to determine if Medicare made payments for which another source (workers’ compensation) should be responsible.  In the past, when we were required to obtain a statement of payments made by Medicare prior to a settlement, Medicare had no guidelines or time lines for their part in this process.  Fortunately steps have been taken by the Federal Government to partially rectify this situation.

On January 10, 2013, President Obama signed the Strengthening Medicare and Repaying Taxpayers Act (SMART Act) into law.

The Secretary of Health and Human Services will soon be required to maintain a website that allows Medicare Beneficiaries to access information about claims and services paid by Medicare. Parties are required to provide Medicare with 120 days notice before they expect settlement of a workers’ compensation case to take place.  Medicare will then have 65 days from the receipt of this notice to provide the Medicare reimbursement amount, a period which can be extended by 30 days by Medicare. After this time has expired, the parties can rely on the Medicare reimbursement amount obtained from the website if the settlement occurs within 120 days of the notice, and within three business days from the last download of the reimbursement amount from the website.

What does this mean to a workers’ compensation claimant?  If their case settles and they receive their Workers’ Compensation Award during this 120 day period then the last statement of conditional payments made by Medicare that was downloaded during this period shall constitute the final amount subject to recovery by Medicare.  This is a joy to behold.  Before this law was made, we would have to wait months for a statement of conditional payments.  Even after we received the statement there was no guarantee that Medicare would then not issue another statement after the settlement asking for more money to be reimbursed to Medicare than was requested prior to settlement.  The process as it stands now is a nightmare for workers and their attorneys.  The Secretary of Health and Human Services has until September 10, 2013 to implement these regulations. Congratulations to Congress for passing this SMART Act.

For more information about this new act, please click here, click here or click here.   

Please contact the Workers’ Compensation Team at Stark and Stark with any questions.

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Ms. Jordan.

N.J.S.A. 34:15-57.4, commonly known as the New Jersey Workers’ Compensation Fraud Statute, is paraphrased below as it relates to an injured worker making a claim for benefits.

A person shall:

(a) Be guilty of a crime of the fourth degree if the person knowingly or purposely:

When making a claim for Workers’ Compensation benefits, makes a false or misleading statement, representation or submission concerning any material fact;

(b) Any person who violates the above shall be civilly liable to any person injured by the above violation.

(c) (1) If a person knowingly or purposely violates this statute the Workers’ Compensation Division may order immediate termination or denial of benefits, and forfeiture of any future benefits/rights.

(2) If a violation is found, the person has to pay back the benefits received plus simple interest.

(d) Nothing in this section shall preclude indictment and conviction for a violation of Title 2C of the NJ Statutes.

For example, an injured worker makes a claim for treatment for a cervical spine injury that happened at work in 2012. The Employer’s attorney discovered a prior cervical MRI from 2002 that showed a C5- 6 disc herniation and used that to stop paying benefits, and filed a counter- motion to relieve the employer of any responsibility under the above Fraud Statute. The injured worker told all treating physicians that he had a prior 2002 biking injury, however he stated to all physicians, that the prior injury was to his right shoulder. He did not reveal the fact that he had a cervical MRI in 2002 to any current physician. He also did not recall being told by any prior physicians that he had any significant cervical injury, and felt that he had only injured his right shoulder in the 2002 biking accident.

The issue is whether the workers’s failure to reveal the prior 2002 cervical MRI to the treating physicians for his 2012 injury was a knowingly or purposely made false or misleading statement to obtain workers compensation benefits. I would argue that the failure to reveal the prior MRI was not fraudulent in any way. Dr Grey, the treating doctor from the 2012 accident states in his report the he spoke with him (the worker) about the previous cervical MRI findings, and he was surprised to learn that he had experienced a previous disc herniation at the same level where he was operated on. He is adamant that his prior treating doctor in 2002 never advised him of any neck concerns, and there is no reason in any of the records which I have been provided to disbelieve the patient in that regard.”

It is clear that the injured worker told all treating doctors about his prior 2002 shoulder injury. He did not specifically mention a cervical injury because in his mind he injured and had surgery to his right shoulder, not his neck. It is reasonable to assume that 10 years after a prior injury, a worker would not remember he had a cervical MRI, when he did not get any treatment for his neck and had no complaints for his neck. It is also likely the Employer would never be able to prove that this worker made a false or misleading statement because the standard of proof for 34:15-57.4 (a), which involves a crime of the fourth degree, requires proof beyond a reasonable doubt. That type of proof would never be possible in this case.

Please call Stark and Stark’s workers’ compensation department for all of your workers’ compensation questions.

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Ms. Jordan.

In the recent case of Stancil v. ACE USA, the Supreme Court of New Jersey considered whether an injured employee may sue his employer’s workers compensation carrier for pain and suffering caused by the insurance carrier’s wifull delay in paying for medical treatment.  Unfortunately the Supreme Court’s answer was “NO.”  

The case arose out of a workers’ compensation claim filed by Wade Stancil after he was injured in 1995.  He received benefits from the carrier (ACE) and in 2006 the workers’ compensation Judge determined that Mr. Stancil was totally disabled. Thereafter Mr. Stancil filed a motion for  payment of outstanding medical bills.  During the motion hearing, the workers’ compensation Judge commented that ACE had a history of failing to make payments when ordered to do so.  The motion was granted on September 12, 2007, and the Judge warned ACE against any further delay in payment.  The parties returned to court on October 29, 2007 because the bills had not been paid.  The Judge found that the failure to pay the bills was a willful violation by ACE and issued an order awarding counsel fees to Mr. Stancil’s attorney and ordering ACE to pay the bills immediately.  The workers’ compensation Judge commented that he had exhausted all remedies available to him to enforce the order, and suggested that Mr. Stancil seek further relief in the Superior Court.  

In 2008 Mr Stancil had additional surgery and psychiatric treatment.  His physician attributed the need for additional treatment to delay caused by ACE’s failure to pay medical bills in a timely manner.   Thereafter Mr. Stancil filed suit in Superior Court claiming that ACE had required him to attend examinations with physicians of their choosing, yet refused to provide the treatment that their own physicians recommended, to his detriment.   Mr. Stancil’s complaint in Superior Court alleged that the workers’ compensation court’s Orders for treatment were ignored by ACE, causing him pain and suffering, and a worsening of his condition.

The attorney for ACE filed a motion to dismiss the complaint arguing that the Workers’ Compensation Statute does not allow for such “bad faith’ suits against workers’ compensation carriers, and that the only remedy available to Mr. Stancil is that which is available in the Workers Compensation Act.  The trial court granted ACE’s motion to dismiss and stated that recent amendments to the Workers’ Compensation Act were enacted to address this type of situation.  The Appellate Division affirmed for the same reasons as the trial court, and  rejected Mr. Stancil’s alternative argument that the employer can be sued under the Workers’ Compensation Statute’s intentional wrong exception.

The Supreme Court of New Jersey granted certification for the limited purpose of determining whether “an employee who suffered a work-related injury has a common-law cause of action for damages against a workers’ compensation carrier for its willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes a worsening of the employee’s medical condition and/or pain and suffering.”  
After a review of the statutory amendments enacted by the Legislature in 2008 --- that adopted a remedy allowing workers’ compensation judges to use contempt powers against recalcitrant carriers --- the Supreme Court held that an injured employee does not have the common law right to sue a workers’ compensation carrier for pain and suffering because of the carrier’s delay.  The Courts stated that the Legislature had considered this type of situation in 2008 when it amended the Workers’ Compensation Act, and rejected certain penalties in favor of granting contempt powers to workers’ compensation judges.  The Court felt that allowing law suits for pain and suffering would open the flood gates for injured workers to sue in Superior Court instead of pursing their cases in the Division of Workers’ Compensation, and would “obliterate the Legislature’s system of workers’ compensation...”  In short, the Court did not find it necessary to fashion an alternative way for injured workers to address their problems with carriers other than through the workers’ compensation court.

As a workers’ compensation practitioner, I disagree wholeheartedly with the decision of the majority in Stancil, and believe that the dissenting opinion by Justin Albin hit the nail precisely on the head.  The cases where one could potentially sue for the pain and suffering that Mr. Stancil experienced are far and few between.  Workers’ compensation carriers delay daily in payment of benefits to workers causing extreme hardship, however it is not that often that carriers wilfully refuse to obey the Order of a Worker’ Compensation Judge.   The Supreme Court should have allowed a common law cause of action for pain and suffering in the few cases where a carrier wilfully refuses to obey a Judge’s order.  As Justice Albin opined, “This case represents a carrier’s intentional and unilateral shredding of the social compact embodied in the Workers’ Compensation Act.....I do not believe that the Act was intended to protect a carrier that displays absolute contempt for the law, thus causing disastrous consequences to a worker within its charge.”

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, concentrating in Workers’ Compensation Law. For more information, please contact Ms. Jordan.

In a recent case,  Van Dunk v. Reckson Associates Realty Corporation, the Supreme Court of New Jersey found in favor of the employer and against the injured worker who was suing his employer for intentional harm.

The injured worker, Mr. Van Dunk, was employed as a laborer for James Construction.  The project was behind schedule because there had been an extreme amount of rain.  Mr. Van Dunk was part of a team of employees who were doing excavation and construction of a trench that had to be lined with fabric. The crew experienced problems in stretching the fabric over the trench, and Mr. Van Dunk volunteered to go into the trench and fix the fabric.  However Mr. Van Dunk’s supervisor told him not to go into the trench because of the dangerous conditions that existed.  

Eventually the supervisor changed his mind and told Mr. Van Dunk to go in to the trench to stretch the fabric, in violation of an OSHA directive not to do so.  Immediately after entering the trench Mr. Van Dunk was buried up to his chest in mud and dirt as the trench collapsed on him causing significant injuries.  The employer was charged with a willful OSHA violation and fined.

Mr. Van Dunk filed a law suit against his employer on the grounds that the supervisor sending him into the trench was in violation of OSHA and was intentionally wrong, and an exception to the general rule that an employee can’t sue an employer for negligence.  At trial, the Judge dismissed the employee’s lawsuit stating that the only action Mr. Van Dunk can take under the law is to file a workers’ compensation case.  Mr. Van Dunk appealed and the Appellate Division found that the company intentionally disregarded his safety in an effort to “increase defendant’s profit and productivity,” and allowed the suit to continue.  The employer then appealed to the Supreme Court of New Jersey.  

The Supreme Court found that while the acts of the employer were reckless, they did not have the requisite intent to harm that is required for an employee to be able to sue an employer for negligence.  The Supreme Court also found that the actions of the employer, and the resulting injury to Mr. Van Dunk, were not so far outside the bounds of what could happen in this type of work environment as to make the harm intentional on the part of the employer.   The Court confirmed the long standing law that in New Jersey an employee is only able to file a workers’ compensation claim, unless they can prove intentional harm on the part of the employer.  

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.