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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.

Continue Reading Does Fraud on the Part of the Employer in Obtaining a Workers’ Compensation Policy Affect the Injured Worker?

Many people know who Ralph Nader is as a political activist, but few would know that he recently opened a Tort Museum in Connecticut. “Tort law” is a legal phrase that gets tossed around a lot, but not many people understand what it truly entails. Tort law is the part of our judicial system that governs claims for wrongdoing, whether the wrongdoing is something done by a corporation or an individual. If you are injured by the acts or omissions of big business, or by the negligent driver of a car that ran into you, you have the right to participate in tort law by filing a law suit in the appropriate court.

This summer, Mr. Nader opened a museum in Winsted, Connecticut to address the history of tort law and the important cases where consumers have been helped by someone filing a law suit against “big business.” Recently, he participated in an interview where he stated that the judicial system in the United States is the only part of our government where one individual acting on their own can change the way business is done.

Continue Reading Tort Law and the Judicial System

On August 28, 2015, in the case of Rajpaul v. McDonalds Corp (A-4681-13T4), the Appellate Division reversed the Workers’ Compensation Judge’s order, which had dismissed Mr. Rajpaul’s claim for failure to file a workers’ compensation claim within the two year statute of limitations period. The facts of this case reveal that Mr. Rajpaul worked in maintenance for McDonalds Corporation from 1995 through 2005. Beginning in 1995, he began to experience pain in his shoulders, wrists and elbows. He was seen for shoulder pain at least four times over the years, and in 2001 he was diagnosed with bilateral bicipital tendonitis of the shoulders, which was resolved with treatment. During this time, he never filed a workers’ compensation claim for the tendonitis.

Continue Reading How Long Do I Have to File a Claim for a Work Related Injury?

On June 11, 2015, the Supreme Court of New Jersey reversed the Appellate Division’s decision in the Estate of Myroslava Kotsovska v. Saul Liebman case and held that the trial court was correct in awarding wrongful death benefits to the estate. In this case, Ms. Kotsovska was hired by Saul Liebman’s daughter to provide in home care for her father, who was 89 years old. She agreed to cook meals, do laundry and do light housekeeping in exchange for being paid $100 per day, cash. There was nothing in writing to formalize the agreement between the parties.

On December 8, 2008, Liebman and Kotsovska were running errands and stopped for lunch at a local diner. Liebman was driving. He dropped Kotsovska off on the sidewalk in front of the diner while he pulled into a parking space in front of where she was standing. Liebman accidentally pushed the accelerator, causing the car to pin Kotsovska against a wall. Unfortunately, she died from her injuries.

Ms. Kotsovska’s estate filed a wrongful death suit against Mr. Liebman, but did not file a workers’ compensation claim. Liebman argued that the case should be transferred to the Division of Workers’ Compensation for a determination of Kotsovska’s status as an employee versus an independent contractor. Mr. Liebman’s homeowner’s carrier stipulated that the accident arose from Kotsovska’s employment.

Continue Reading Does the Workers’ Compensation Court have Exclusive Jurisdiction to Decide Issues of Employment?

As an attorney accredited to prosecute claims for veterans’ benefits before the Department of Veterans Affairs, I want to make you aware that you have the absolute right to retain an attorney to represent you before the Department of Veterans Affairs. A Veteran can be represented by an attorney once he or she receives an official denial of benefits, but not before that time. An attorney cannot charge a fee for assistance in the preparation of the Veteran’s application for compensation.

It is important to remember that you must prove three things to be successful in obtaining a service connected disability award and receive compensation.

First, you must prove that you had an event that caused your disability while you were in service. Of course, you must be a veteran who was discharged under conditions other than dishonorable, so it is best to have your DD214 form for your attorney to review. You are also entitled to compensation if an event that happened in the service aggravated a pre-existing condition. Remember that while most medical conditions become apparent right after the event happens, some medical conditions may not appear to be disabling until many years after military service. You can still file a claim for these late occurring conditions.

The second requirement is that you must have a current disability when you apply for your VA disability benefits. If you do not have a current disability, you will not be eligible to receive benefits. This means that you must have a medical professional diagnose you with a current medical condition, related to your military service, at the time you actually apply for the benefits. If you had a medical condition while you were in the service, and you recovered from it totally before you apply for benefits, you will not be eligible.

Finally, there must be a link between the current medical condition and the event that occurred while you were in the service. The best way to prove that you have a service related disability is by showing that you had medical treatment for a condition while you were in the military, and that you still suffer from the condition when you apply for VA disability benefits. Disabilities can be mental and/or physical. There are some conditions where you may not have had any actual treatment when you were in the military, and the disability occurred later after discharge. This is acceptable as long as you have a medical professional who can document that your activities in the military caused your current medical or physical disability. An example of this type of disability is Post Traumatic Stress Disorder, which often occurs at a later time.

There are certain conditions that are presumed to be from military service and do not have to be proven as service related. One example would include cases where the Veteran was exposed to Agent Orange during the Vietnam or Korean wars. Another would include certain medical conditions related to service in the Persian Gulf War.

If you have additional questions about your right to Veterans’ Disability Benefits, feel free to give us a call to discuss your options.

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.

  1. 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.
  2. 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.
  3. 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.
  4.  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.
  5. 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.

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.

Effective Jan. 1, 2015, the maximum weekly benefit for work related injuries increased from the maximum rate of $843 in 2014 to the maximum rate of $855 in 2015.  This weekly benefit rate is the maximum dollar amount an injured worker can receive if the worker is kept out of work by the authorized workers’ compensation doctor for more than seven days.  The rate is calculated as 70% of the worker’s average weekly wage, subject to the above mentioned maximum rate cap. The minimum weekly benefit will increase from $225 to $228.  The minimum rate is the lowest amount of money an injured worker will be paid while he or she is out of work, under the care of the authorized doctor, after missing at least seven days of work.  This money payable to the injured worker is tax free and is not declared as income on either State of New Jersey or Federal tax returns.

In cases involving permanent partial disability awards, the 2014 weekly benefits ranged from $225 to $843.  The rates varied based on the nature and extent and type of partial disability.  This will increase in the year 2015 from a low of $228 to a maximum rate of $855, respectively.  Permanent total disability is 70% of wages, subject to a maximum of $855.00 a week as described above.

What has not changed in 2015 is that permanent partial disability awards in New Jersey remain tax free and are not declared as income on either New Jersey or Federal tax returns. What is permanent partial disability in New Jersey?  It is defined in the case of Perez v. Pantasote  and in N.J.S.A 34:15-36 as follows:  Permanent partial disability requires proof of disability by demonstrable objective medical evidence of loss of function of the body and proof that the injured worker has suffered a lessening to a material degree of his or her working ability, or that the disability is serious enough to effect other aspects of life outside of work.  You are still entitled to a permanent partial disability award even if you return to your same job after your injury, as long as you can prove loss of function and its effect on your job or home life.  To obtain the maximum award possible it is recommended that you seek the services of an attorney who can file a formal workers’ compensation claim petition with the New Jersey Department of Labor. If you have any questions about your right to a permanent partial disability award, please call the workers’ compensation lawyers at Stark & Stark for a free consultation.

In 2014, the Camden County Bar Association’s Workers’ Compensation Committee presented a seminar on the topic of commuting injuries in workers’ compensation cases.  As co-chair of this committee, I was one of the speakers.  This seminar focused on the Premises Rule and the many exceptions to that rule.  The “Premises Rule” came about as the result of amendments to the workers’ compensation statute in 1979.  This “Rule” basically stands for the proposition that employment commences when the employee arrives at the employer’s premises and ends when the employee leaves the employer’s premises at the end of the work shift.  This rule by definition excludes areas that are not under the control of the employer.  The intent of this rule was to eliminate the many exceptions that were carved out by the Court in commuting injuries prior to 1979.

However the state of the law now is that more exceptions have been carved out of the premises rule, and the Courts are once again regularly being asked to rule on commuting injuries.

For example, the new case of Kotler v. DCH Kay Honda focuses on a situation where a worker was severely injured on his way home from an emergency work shift.  Mr. Kotler was called in to work by his employer on the day after Christmas, a Sunday, to move cars around in the Honda dealer’s lot because of an impending snow storm.  The car dealer was always closed on Sundays, and Mr. Kotler was a sales person, not a car jockey.  However he felt obligated to come in to help that Sunday because he was a new employee and was asked by his boss to come help move cars to get them out of the way of the storm.  He did go in to help, but left after a few hours because it had started to snow, his own car was not good in the snow, and his boss gave him permission to leave.  The governor ended up declaring a State of Emergency that day because of the snow, and Mr. Kotler’s car skidded on the way home causing significant injuries.  The workers’ compensation Judge agreed with Mr. Kotler, that he felt “compelled” by his boss to be at work that day, and thus the commute home should be covered under the workers’ compensation act.  On appeal, the Appellate Division found that this accident was just like any other commute home and held that it was not covered under the workers’ compensation act.  Mr. Kotler appealed to the Supreme Court of New Jersey and we are waiting to see if they will re-consider this case.

Another case along these lines is Sager v. O.A. Peterson Construction Co, which also went all the way to the New Jersey Supreme Court.  In the Sager case, the employee was working on a job site in New York City on 9/11/2001.  The work crew could not return home to NJ because of 9/11, and the supervisor decided that his crew would find a place to go out to dinner and then return to the work site.  While returning to the job site from dinner Mr. Sager was in a head-on collision and was injured.  The Supreme Court held that Mr. Sager felt compelled to follow his supervisor’s orders to go to dinner and then return to work, and that his injury was covered under the New Jersey Workers’ Compensation Act.

 

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.