UPS Driver Prevails on Repetitive Trauma Injury

The NJ Court of Appeals, in an unreported decision, has upheld the compensability of a repetitive traumatic condition asserted by a United Parcel Service (UPS) truck driver who for 39 years drove vehicles with poor suspension and hitched trailers together at depots.

The Appellate Court rejected the defense of the statute of limitations asserted by UPS for pre-existing back conditions and its defense expert medical opinion relating the back condition to both pre-existing and unrelated conditions.

In NJ, it is well established that, “….The Court relies heavily upon the evidence presented in reaching decisions regarding back injuries. In reaching its determination to assess appropriate disability, the court must rely upon findings that have been reached based on sufficient credible evidence presented in the entire record.” Gelman, Jon L, NJ Workers’ Compensation Law, 38 NJ Prac. § 8.2.

The continued employment at UPS for 39 years and the daily trauma to his back, negated the defense of the statute of limitations. The Court stated, “Here, there is no question but that the Judge of Compensation properly understood the deadlines for filing a compensation claim and a reopener. The judge did not misunderstand the law. His ruling was premised on the facts he found after evaluating the testimony. The timeliness of Hendrickson's claim turned on whether his continued employment at UPS, “merely cause[d] pain from pre-existing conditions to be manifested” as in Peterson, supra, 267 N.J. Super. at 505, or whether it resulted from “additional 'physical insult,' ... materially attributable to [his] job duties” as in Singletary v. Wawa, 406 N.J. Super. 558, 568 (App. Div. 2009).”

Hendrickson v United Parcel Service, DOCKET NO. A-3267-15T2, N.J. App. Div. 2017, 2017 WL 2953709. Only the Westlaw citation is currently available. Decided July 11, 2017. “This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Superior Court of New Jersey, Appellate Division.”
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

For over 4 decades theLaw Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Employer-Reported Workplace Injuries and Illnesses Continue to Decline

The US Bureau of Labor Statistics (BLS)  has reported that there were approximately 2.9 million nonfatal workplace injuries and illnesses reported by private industry employers in 2015, which occurred at a rate of 3.0 cases per 100 equivalent full-time workers.

The 2015 rate continues a pattern of declines that, apart from 2012, occurred annually for the last 13 years. Private industry employers reported nearly 48,000 fewer nonfatal injury and illness cases in 2015 compared to a year earlier, according to estimates from the Survey of Occupational Injuries and Illnesses (SOII). Because of this decline, combined with an increase in reported hours worked, the total recordable cases (TRC) incidence rate fell 0.2 cases per 100 full-time workers. 

The fall in the TRC rate was driven by a decline in the rate of cases involving days away from work (DAFW) and other recordable cases (ORC)—each falling 0.1 cases—as the rate for cases of job transfer or restriction only (DJTR) has remained at 0.7 cases since 2011.

Beginning with the 2016 reference year, the Survey of Occupational Injuries and Illnesses (SOII) will present a single release of national data on November 9, 2017. This release will include industry counts and rates along with case circumstances and worker characteristics for cases requiring days away from work; in previous years, these data were released separately. State data will be released on November 28, 2017. A similar schedule will be followed in subsequent years.

A question remains whether this decline will continue based upon the reduction of safety and environmental regulations that the Trump administration is proposing. Also of concern is whether the decline in the manufacturing sector in the US will have an impact on the statistics going forward.

Opioid Litigation and Workers' Compensation

The newly initiated litigation by public entities against Big Pharma may prove to be a huge boost to the workers' compensation system. The lawsuits have the potential curtailing a massive drain of benefit dollars and may provide for subrogation as a result of the nations' opioid epidemic.

At a recent NJ State Bar Association meeting in May 2017 Atlantic City, Mark B. Zurulnik, an attorney who specializes in workers' compensation law, referred to the potential of a such a lawsuit.

NPR reported today that, "A wave of litigation by state attorneys general against the biggest opioid manufacturers and distributors feels reminiscent of lawsuits brought by states in the 1990s against the tobacco industry." Click here to read the entire NPR report.

Third party litigation can impact workers' compensation programs in multiple ways. Historically, both the tobacco and asbestos litigation curtailed the use of the hazardous products going forward. Subrogation is yet another situation though. It requires the ability of the parties to establish specific liens. While this was easily done in asbestos occupational exposure litigation, it was much more difficult to seek individual reimbursement or set-off in claims caused by or complicated by tobacco use in the workplace.

Notwithstanding the public entity, opioid litigation is yet another social cause that may, in fact, improve the lives of injured workers and in the long run provide tremendous benefits to both employers and their insurance companies.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

An Injury to All

Governor Chris Christie (R) has issued an Executive Order closing the NJ Division of Workers' Compensation. Christie, who is the most unpopular Governor in the US, with a 15% approval rating, has decided now, in his remaining few months in office, to get into yet another political squabble with the Democratic legislative majority.

The action of closing the NJ Division of Workers' Compensation office defeats the attempt to improve the system. At a recent NJ State Bar Association meeting in May 2017 the Chief Judge and Director, Hon. Russell Wojtenko, Jr., described that it was his goal to reduce the disposition rate of the pending caseload to at least 24 months. This is a noble goal and one that would benefit all involved in the system, including employers, injured workers, workers' compensation hearing officials, as well as all stakeholders. 

Closing the Division of Workers' Compensation offices does not benefit anyone. Everyone suffers, even those who are working in the administration such as Director Wojtenko, as they struggle during a difficult time to greatly improve the system.

Hurting people and businesses should not be a political tactic (#beachgate). It is enough that the Christie administration closed the George Washington Bridge because of political motivation. Choosing to close the NJ Division of Workers' Compensation because of a political argument only hurts all citizens and business of the State of New Jersey.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.