What’s Hot in Workers’ Compensation, Vol. 24, No. 12, December 2021

TOP 10 DEVELOPMENTS IN NEW JERSEY WORKERS’ COMPENSATION IN 2021

By
Kiara K. Hartwell

1.    The Appellate Division affirmed a Judge of Compensation’s decision to include the petitioner’s portion of attorneys’ fees and costs in the employer’s Section 40 lien.
Panckeri v. Allentown Police Dep’t, Docket No. A-2015-19 (Appellate Division, Decided Mar. 2, 2021)

In this per curiam decision, the Appellate Division enforced a statutory lien, agreeing with the Judge of Compensation that the petitioner’s share of costs and fees should be included as a part of the subrogation calculation. In affirming the judge’s decision, the Appellate Division heavily relied on the judge’s reasons and only added that the petitioner’s reliance on Kuhnel v. CNA Insurance Cos., 322 N.J. Super. 568 (App. Div. 1999) was misplaced, as the petitioner’s share of fees and costs was not addressed Kuhnel was decided eight years prior to the 2007 amendment of Section 40, in which there was no mention of a petitioner’s portion of fees and costs.

2.    The New Jersey Supreme Court addressed medical marijuana in workers’ compensation cases.
Hager v. M&K Constr., 246 N.J., 1247 A.3d 864 (2021)

The New Jersey Supreme Court affirmed both the workers’ compensation court’s order and the Appellate Division’s to order a respondent to reimburse a petitioner’s medical marijuana costs. First, the Supreme Court found the employer did not qualify as “a government medical assistance program or private health insurer” under the Compassionate Use Act and N.J.S.A. 24:6I-14 and that medical marijuana was a reasonable and necessary treatment. Finally, the Supreme Court noted the employer was not aiding and abetting the petitioner’s possession of marijuana by reimbursing medical marijuana costs.

3.    The Appellate Division affirmed dismissal of a workers’ compensation case based on the premises rule.
Pilone v. Cnty. of Middlesex, Docket No. A-1676-19, (Appellate Division, Decided Mar. 15, 2021)

The Appellate Division agreed with the judge’s decision that the petitioner’s injury was not compensable as it did not arise out of and in the course of employment. In reiterating that the premises rule limits an employer’s liability to locations that the employer controls, such as by ownership, maintenance or exclusive use, the Appellate Division noted the respondent had no control over the sidewalk where the petitioner fell. In addition, the Appellate Division pointed out the petitioner failed to prove the respondent directed her to have her meeting in the donut shop. 

4.    The Appellate Division affirmed a judge’s finding of causal relationship between the work accident and need for treatment after weighing expert opinions.
Soto v. Exclusive Coachworks, Inc., Docket No. A-2331-19, (Appellate Division, Decided Apr. 12, 2021)

In affirming a judge’s order to provide benefits, the Appellate Division noted the judge, as the trier of fact, was in the best position to weigh the credibility of experts and the decision was well-supported by the record. In this case, both experts agreed the petitioner needed a total knee replacement; that as a result of the 2017 incident, he required arthroscopic surgery, at a minimum; and his underlying arthritis was exacerbated by the 2017 incident. 

5.    The Appellate Division affirmed a workers’ compensation judge’s decision to dismiss as the injury was not in the course of employment.
Regalado v. F&B Garage Door, Docket No. A-0083-20 (Appellate Division, Decided Jun. 8, 2021)

The Appellate Division affirmed a Workers’ Compensation Judge’s decision to dismiss a petitioner’s claim as a result of a car accident after an employer’s annual holiday party. The Appellate Division reviewed Lozano v. Frank DeLuca Constr., 178 N.J. 513 (2004), noting that an employee’s subjective impression of compulsion alone was insufficient. Rather, other factors needed to be taken into account, such as the employer’s solicitation of employee participation, when/where/whom the event takes place, and whether refusal could negatively impact the employee’s employment. 

6.    The Appellate Division affirmed a workers’ compensation court order to deny additional medical and temporary benefits to a petitioner.
Constanzo v. Meridian Rehab, Docket No. A-5547-18 (Appellate Division, Decided Jun. 17, 2021)

The Appellate Division agreed with the judge, who heard testimony and found the petitioner failed to establish a causal relationship between the original injury and current left knee condition. There was ample evidence to support that the current left knee condition was not related to the April 2016 incident and the judge did not err in giving greater weight to Dr. Sieler’s testimony, as judges are in the best position to assess credibility, and giving more weight to one expert’s opinion is not a basis to reverse a judgment.

7.    The Appellate Division affirmed the workers’ compensation court decisions, noting petitioners were not entitled to redetermination of benefits.
Published Consolidated Appeals (Appellate Division, Decided Jun. 21, 2021): Wilhelm v. Ryder Logistics & Transp. Sols. & Second Injury Fund, Docket No. A-3770-18; Bozarth, Sr. v Burlington Cnty. & Second Injury Fund, Docket No. A-3792-18; Schiazza v. Western Oilfield Supply & Second Injury Fund, No. A-3797-18; and Pierce, Jr. v. CBF Trucking & Second Injury Fund, Docket No. A-3798-18

The Appellate Division agreed with the Judge of Compensation that N.J.S.A. 34:15-95.5 did not compel a triennial redetermination of Average Current Earnings (ACE) nor was it mentioned. As an issue of first impression, the Appellate Division noted that New Jersey was a reverse offset state, in which the workers’ compensation award was reduced rather than Social Security Disability. In addition, the Appellate Division noted the plain language does not include same and there was no mention in the legislative history. It was also indicated that 42 U.S.C. § 424a(d) created an exception for reverse offset states. As such, the Appellate Division found the triennial redetermination of Average Current Earnings (ACE) was not applicable in New Jersey as a reverse offset state.

8.    The Appellate Division affirmed grant of summary judgment for plaintiffs’ failure to establish intentional wrong.
Estate of Portillo v. Bednar Landscaping Serv., Inc., et al. and Estate of Zelaya v. Bednar Landscaping Serv., Inc., et al., Docket No. A-3110-19 (Appellate Division, Decided Jul. 8, 2021)

In affirming the Law Division’s grant of summary judgment, the Appellate Division found the plaintiffs were collecting workers’ compensation benefits and the defendants did not commit an “intentional wrong.” After reviewing relevant case law, the Appellate Division found that, unlike some of the prior cases, the defendants here had no prior OSHA citations and were not aware of OSHA’s safety regulations for trenches. In addition, the plaintiffs could not show the defendants had knowledge regarding the unsafe trench practice and substantial certainty of the collapse. Judge Sabatino joined in the majority’s decision to affirm summary judgment, but added in his concurring opinion his thoughts on the troubling inconsistency between the defendants’ lack of knowledge assertions in the civil case and Bednar Landscape’s plea of guilty to a criminal accusation of violating a known legal duty to take precautionary safety measures. 

9.    The Appellate Court affirmed dismissal of claim for petitioner’s failure to demonstrate injury was in course and scope of employment.
Mackoff v. New Brunswick Saw Serv., Docket No. A-3625-19 (Appellate Division, Decided Jul. 14, 2021)

The Appellate Division agreed with the judge in denying the petitioner’s motion and dismissing the claim. In doing so, the Appellate Division reviewed Jumpp v. City of Ventnor, 177 N.J. 470 (2003), in which the Supreme Court found that compensability for employees who work away from the office should be based on whether the employee was performing job duties at time of the injury. Because the petitioner admitted that the Inn was two hours out of his way, rather than going directly to his office from the meeting location; the Inn was never a customer; and he had no other appointments with customers, the Appellate Division declined to disturb the judge’s findings. 

10.    The Appellate Court reversed dismissal of workers’ compensation claim under premises rule.
Walker v. Saker ShopRite, Docket No. A-2770-19 (Appellate Division, Decided Sep. 7, 2021)

The Appellate Division reversed the Workers’ Compensation Judge’s dismissal of a claim based on the conclusion that the accident did not take place in the course of the petitioner’s employment. In revising the premises rule, the Appellate Division found the petitioner’s incident occurred in an area controlled by Saker. The Appellate Division further explained that “it is well-established in workers’ compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right.” 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.