The New Jersey Workers’ Compensation Fraud Statute, N.J.S.A. 34:15-57.4, is alive and well in the Division of Workers’ Compensation as it applies to injured workers. Attorneys for workers’ compensation carriers are making fraud arguments often, and in some cases being successful in terminating workers’ benefits. Yet injured workers do not routinely file fraud claims against employers and/or their insurance carriers, who routinely and improperly deny benefits to injured workers. However in this update to an article I wrote previously, I can now happily report that the New Jersey Workers’ Compensation Statute applies to both employees and employers.
Generally, petitions filed by injured workers for occupational disease claims are barred if they are not filed within two years of the date the injured worker discovered the nature of the disability and it relationship to employment. This is addressed in the workers’ compensation law under N.J.S.A. 34:15-34.
Unlike an accident, which has a specific date, the precise onset of an occupational disease may be hard to determine. Continue Reading Statute Of Limitations in a New Jersey Workers’ Compensation “Occupational Disease” Claim
Generally speaking, a person who is assaulted at work to receive workers’ compensation benefits must show that the assault is related to the employment relationship and not from a purely personal relationship. If the assault arises out of a clearly personal dispute, the injured employee may be barred from obtaining workers’ compensation benefits. The injured party may, however, be able to pursue a common law negligence claim against the co-worker who perpetuated the assault.
In a recent case, Lesley Joseph v. Monmouth County, Mr. Joseph appealed a workers’ compensation Judge’s decision to dismiss his claim after he was assaulted by another employee at work. The Judge found that the assault lacked any connection to the workers’ employment, as it arose out of the worker’s involvement with the other employee’s pyramid investment scheme. The injured worker appealed arguing that the fact that the assault happened in the workplace was enough to make it arise “out of and in the course of” employment.
For any doctors who treat workers’ compensation patients, there are several issues they should be aware of in order to effectively provide treatment to these injured workers in New Jersey. If you are injured at work and getting medical treatment, the issues below are crucial for you to understand and discuss with your doctor if necessary: Continue Reading New Jersey Doctors Should Be Aware of Workers’ Compensation Issues
If you were doing something, however slight, to cause an injury at work be sure to let your employer know all of the facts when you report the injury. As the case below verifies, if you are just walking at work and feel a “pop” in your back, you will probably be denied workers’ compensation benefits. Just being present at work does not automatically make an injury work related. The injury must arise out of the employment duties, and you must be careful to report the duties that you feel caused your injury.
On June 2, 2016 I attended an extremely interesting presentation given by the law firm of Costello & Mails about the employer’s duty to provide a safe work place for employees. There are many State and Federal laws that address this issue, as will be explained below. As a workers’ compensation attorney I found the information invaluable since the workers’ compensation statute is a no-fault statute that does not require an employer to maintain any level of safety for workers. The trade-off makes an employee eligible for certain limited benefits regardless of whether the employee or the employer is at fault. An employer at fault for an employee’s injury does not mean that the employee will get any more or any less benefits than an employee who was at fault for his or her own injury at work. The benefits discussed at this recent presentation were over and above any compensation an employee might be entitled to under the workers’ compensation law.
Sometimes, injured workers have questions regarding authorized or unauthorized medical care. N.J.S.A. 34:15-15 of the New Jersey Workers’ Compensation Act provides that, “The employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury.” The case of Benson vs. Coca Cola Co. addresses the issue of unauthorized medical care.
In the Benson case, the employee was examined by the workers’ compensation carrier’s physician. The employee subsequently sought out medical treatment from another physician, without the workers’ compensation carrier’s authorization, and then sought reimbursement from the carrier for the medical expenses. The workers’ compensation court found against the employee, holding that N.J. Stat. Ann. § 34:15-15 did not give discretion to the injured employee to seek independent medical assistance, thus the outside medical treatment and hospitalization was unauthorized.
On December 4, 2015, the Appellate Division decided the can of Rose Fonrose Louis v. Burger King Corp, and held that the petitioner’s sole remedy for sexual harassment at work was in the Workers’ Compensation court. The case arose during Petitioner’s employment at Burger King in the Monmouth Mall. During the length of employment, Petitioner was sexually harassed by an assistant manager who made inappropriate sexual advances while they were both in a walk-in freezer. While the harassment was occurring, the store manager opened the door of the walk in freezer, looked at both employees, and closed the door.
Testimony revealed that while the manager had the door open, the assistant manager stopped his harassment. Later the same day, the assistant manager again made inappropriate sexual advances toward the petitioner while both were working. Petitioner did not report the incidents, however the following day her husband called to complain to the manager about how his wife was treated and he also made a visit to the store to follow up. At that time, Burger King had a written policy prohibiting workplace harassment, and that policy had been issued to all employees.
In following and consistent with the harassment policy, the manager reported the incidents to the district manager, who initiated an investigation and transferred the offending assistant manager to another store. Several days later, the petitioner also filed a complaint with the police department, who charged the assistant manager with fourth-degree criminal sexual contact.
A particularly noteworthy case was recently decided by the Appellate Division on November 20, 2015. This case, Colleen Fitzgerald v. Walmart, is so interesting because the Court found that the worker’s injured condition did not qualify as a work related injury simply because she felt a “pop” in her low back while walking at work.
The Petitioner, Colleen Fitzgerald, filed a claim for an accident that occurred on April 26, 2010, while she was working for Walmart. She stated that she was merely walking in the store and felt a “pop” in her low back. While at the time of the claim Ms. Fitzgerald said she felt the pop she was not doing anything other than walking, later testimony revealed that at some time prior to the incident she had been doing some lifting at work in her position as a zone merchandise supervisor.
She reported the accident to her manager, and after seeing her family doctor who diagnosed her with protruding lumbar discs, she took FMLA for 12 weeks and a leave of absence while she received treatment. She did return to work at Walmart for a period of time, however because she then had another non-work related slip and fall accident where she broke her elbow, she was ultimately terminated from her job at Walmart. There was never any authorized treatment provided by the Workers’ Compensation carrier for Walmart.
In American Millennium_v. Berganza, the Court examined the case where a drywall subcontractor, Mr. Berganza, obtained workers’ compensation coverage with American Millennium Insurance Company on January 18, 2003, with an effective date of January 19, 2003. On January 21, 2003, Mr. Berganza’s employee, Jose Arias, fell off of a ladder and broke his leg on the work site. The trial judge found that Mr. Berganza reported the accident to the broker three days after the accident, and that on January 29 or 30 American Millennium issued the insurance policy to Mr. Berganza, with an effective date of January 19, 2003.
However, American Millennium refused to provide workers’ compensation coverage for Mr. Arias and filed suit to rescind the policy after a review of their documents revealed that Mr. Berganza made fraudulent statements in the insurance application process. The insurer also claimed that, considering the fact that Mr. Berganza waited three days to report the accident while his application for a back-dated policy was pending, he had committed fraud.
The Appellate Court in New Jersey held that American Millennium could not deny its obligation to the injured employee based on fraud committed by the employer because the workers’ compensation policy was in effect on the date of the injury, and there was no valid cancellation. Case law, as explained in American Millennium, established that a workers’ compensation carrier cannot void a policy in an instance where the application by the employer contained fraudulent statements.