Just Published: 2017 Update - Gelman on Workers' Compensation Law

Jon Gelman’s, newly revised and updated 2017 treatise on Workers’ Compensation Law is now available from  by West Group of Egan, MN within the next few weeks. The treatise is the most complete work available on NJ Workers’ Compensation law and integrated with WESTLAW™, the "most prefered online legal research service.'"

• The recent NJ Supreme Court case involving the jurisdictional issue of employment status is reviewed. This supplement reviews the analysis and mandates of the Court concerning the appropriate forum to resolve the concurrent jurisdiction issues. Other new case law, including dual employment status and its application to the Exclusivity Rule is discussed.
• A revised chapter has been added that discusses the responsibilities of a workers’ compensation attorney and ethical considerations while handing claims. The material includes how to identify and protect the client’s interest of protected personal in-formation confidentiality. Additionally, it reviews potential cybersecurity threats in light of the increased technology advancement of the practice and what attorneys should do to protect against and respond to the cyber attacks.
• This supplement analyzes the newly enacted expanded World Trade Center Health Program and the integration with workers’ compensation benefits.
• The section on cancer and the complex smoking defense has been expanded and updated. It now includes a review of current case law and literature encompassing the health effects of environmental tobacco smoke.
• Recent decisions concerning The Federal Influenced and Corrupt Organizational Acts (RICO) and workers’ compensation insurance companies, medical providers, and self-insured are discussed. The current Federal Court decisional activity involving NJ operating pharmaceutical distributors is reviewed.
• The new Centers for Medicare and Medicaid Centers (CMS) Secondary Payer Act Secondary Payer Act (MSP) offset procedures and adopted regulations, implementing The SMART Act are presented in this supplement. The rules for both beneficiary and applicable plans to process and to perfect an appeal, are reviewed. The method and manner of reporting, and communication, with the newly established CMS Commercial Repayment Center (CRC) for workers’ compensation conditional payment is reviewed. Additionally, the newly established procedures and formats for Workers’ Compensation Medicare Set-Aside Arrangements (WCMSA) are discussed.
• Newly proposed rules by the Occupational Safety and Health Administration (OSHA) concerning beryllium are reviewed. Additionally, a list of New Jersey Covered Facilities under the Energy Employees Occupational Illness Compensation Program is provided.
• The NJ Supreme Court decision involving “The Coming and Going Rule” and its application to parking lot cases is discussed. Cardiovascular disability claims are analyzed in accordance with the NJ Supreme Court’s recent decision involving what constitutes “work effort” that would trigger a compensable event.
• The application of the Fraud Prevention Act as a mechanism to bar compensability when information is withheld is reviewed in this supplement. The synergy between tort law and the Workers’ Compensation Act, as expressed in recent case law, is discussed. The recent decision involving the determination of employment status and independent contractors is incorporated in this material.
• New procedures regarding contacting insolvent entities administered by the NJ Product-Liability Insurance Guaranty Association are outlined. The recent Court ruling involving temporary disability benefits and third-party action liens are included in this supplement.
• The new Life Tables are included in this material. The updated Centers for Medicare and Medicaid Services reporting requirements for recoveries for environmental hazards and ingestion of particular substances are discussed.
• The utilization of new procedures for medical provider benefit recovery, motions for emergent medical treatment, counsel fees, and methods to correctly respond to the Court and notice requirements for hearing notice listings are described in this supplement.

Gelman on Workers’ Compensation Law is exclusively integrated into the entire world-wide leading legal research network of West Group-Reuters-Thomson publications.

It is now available, in print, on CD-Rom and online via Westlaw™ and WestlawNext™. [Westlaw Database Identifier NJPRAC].

Now also available an an electronic edition/tablet edition as a ProView™ edition.

Click here now to order your copy.

Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers’ compensation law and occupational/environmental disease litigation. Over a career spanning more than three decades he has been involved in complex litigation involving thousands of clients challenging the mega-industries of: asbestos, tobacco and lead paint. Gelman is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). He is the former Vice-President of The Workers Injury Law & Advocacy Group (WILG), a charter member of The College of Workers' Compensation and a member of The National Academy of Social Insurance (NASI). Lawyers. Jon is a founder of the Nancy R. Gelman Foundation Inc., which seeks to fund innovative research to cure breast cancer. He is also an avid photographer.

NJ Supreme Court Voids a Contractually Shortened Statute of Limitations for Discrimination Actions

The NJ Supreme Court has ruled that the two-years statute of limitations on employment discrimination action, inclusive of workers' compensation derivative actions, cannot be shortened by a private contractual agreement between an employer and employee.


"We hold that a private agreement that frustrates the LAD's public-purpose imperative by shortening the two-year limitations period for private LAD claims cannot be enforced."

"FN5 To the extent that plaintiff's worker's compensation retaliation claim is derivative of his LAD action, the waiver is inapplicable to that claim as well.

RODRIGUEZ v RAYMOURS FURNITURE COMPANY, INC, ___ NJ ____. ____A.3d_____ (NJ 2016). Decided June 15, 2016

SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.) Sergio Rodriguez v. Raymours Furniture Company, Inc. (A-27-14) (074603) Argued December 1, 2015 -- Decided June 15, 2016

LaVECCHIA, J., writing for a unanimous Court. In this appeal, the Court addresses whether the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, which was established to fulfill a public-interest purpose, can be contravened by private agreement. In August 2007, plaintiff Sergio Rodriguez, applied for a job with defendant Raymours Furniture Company, Inc., t/a Raymour & Flanigan. The last page of the job application contained a section which applicants were instructed to read carefully before signing. A portion of that section read, in bolded capital letters, “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.” Plaintiff signed the application and returned it. In mid-September 2007, plaintiff was hired as a Helper, an at-will position. In November 2008, he was transferred to another location and promoted to Driver. Early in April 2010, plaintiff injured his knee in a workrelated accident, requiring surgery and physical therapy. On October 1, 2010, two days after he returned to full-duty work, plaintiff was terminated. Although informed that his termination was due to a company-wide reduction in force, plaintiff asserted that others with less seniority or distinguishing features were retained. On July 5, 2011, nearly seven months after his termination, plaintiff filed a complaint against defendant in Superior Court, alleging, in part, illegal employment discrimination based on actual or perceived disability, in violation of the LAD. Defendant moved for summary judgment based on the waiver provision, asserting that plaintiff’s complaint was filed beyond the agreed-upon six-month limitations period. Plaintiff contended, in part, that the provision was unconscionable and unenforceable. The trial court granted summary judgment to defendant, finding that the provision was clear and unambiguous, and that the contractual shortening of the limitations period was neither unreasonable nor against public policy. Plaintiff appealed, and the Appellate Division affirmed. Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (App. Div. 2014). Although the panel found that the employment application amounted to a contract of adhesion, it determined that it was enforceable in light of its clear, unambiguous language and the ample time plaintiff had to review it. The panel further held that, absent a controlling prohibitory statute, parties may modify a statute of limitations if, as here, the shortened time period is reasonable and does not violate public policy. The Court granted plaintiff’s petition for certification. 220 N.J. 100 (2014). HELD: A private agreement that frustrates the LAD’s public-purpose imperative by shortening the two-year limitations period for private LAD claims cannot be enforced. 1. New Jersey’s decisional law respects that private interests are intertwined with the public interests furthered by the LAD. Here, the Appellate Division focused on the general principle of the existence of a broad right to contract, but it did not sufficiently assess the public-interest purpose of the LAD, which seeks unequivocally to eradicate discrimination against any of New Jersey’s inhabitants. To enforce the LAD and further this goal, the Legislature created a division now known as the Division on Civil Rights (DCR), where aggrieved parties can file discrimination complaints. In 1979, the LAD was amended to also provide for a right of action in Superior Court. Because the LAD is silent as to a limitations period for LAD claims, the Court, in Montells v. Haynes, 133 N.J. 282 (1993), found that a two-year limitations period comported with the purpose of the LAD and provided needed uniformity among claims. In the twenty-three years since Montells, the Legislature has registered tacit approval of the two-year period by failing to take legislative action disavowing it. (pp. 14-20) 2. To pursue relief under the LAD, a person alleging discrimination can file a complaint with the DCR within six months of the cause of action or file a direct suit in the Superior Court within two years. Permitting an aggrieved party to first bring a claim to the DCR furthers important public policies, such as the settlement of litigation through 2 alternative dispute resolution and the prosecution of alleged discrimination. However, although the DCR process is intended to provide more timely resolution than an action in Superior Court, the Legislature recognized that this goal may not always be met. Consequently, an injured party may withdraw its DCR complaint at any time before the DCR makes a final decision and proceed instead in Superior Court. This allows a litigant to potentially use both forums, subject to the outer limit of the two-year limitations period for court actions. (pp. 20-23) 3. This cases raises a question of first impression. Although the issue arises in a private action, this matter, like all LAD actions, also advances and fulfills the legislatively declared public interest in the elimination of discrimination. Because, more than two decades after Montells, the two-year limitations period is woven into the fabric of the LAD, a contractual shortening of the period must be examined for its substantive impact to determine if it is impliedly prohibited by the LAD scheme. The availability of two avenues of relief in the event the administrative process extends too long reflects the Legislature’s understanding that public policy requires a lengthier period of time to obtain LAD relief. Its tacit approval of the two-year limitations period accommodates these two avenues. Consequently, a shortening of that period undermines and thwarts the legislative scheme by effectively divesting the aggrieved party of the right to pursue an administrative remedy. Additionally, since claimants may not immediately be aware of their cognizable claims, shortening of the period will effectively eliminate claims and frustrate the public policy of uniformity and certainty. Conversely, the shortened period may also compel attorneys to file premature LAD actions. Finally, the two-year period also allows an employer the opportunity to protect itself and promote the eradication of discrimination by investigating and resolving complaints before an LAD claim is filed. (pp. 24-28) 4. While New Jersey law recognizes that an individual may agree by contract to submit a statutory LAD claim to alternative dispute resolution, the contract must nevertheless be examined to ascertain whether substantive rights have been precluded. Here, the contractual shortening of the limitations period effectively foreclosed plaintiff’s substantive right to utilize all available avenues of relief since there was not enough time to choose to begin with a filing with the DCR. In light of the interplay between the LAD’s administrative remedy and the right to file in Superior Court, as well as the joint public and private interests advanced by a claim pursued in either forum, contractual shortening of the two-year limitations period for a private action is contrary to public policy. The DCR remedy must remain accessible and vibrant, and the anti-discrimination public policy to be fulfilled through LAD claims may not be contractually curtailed. Thus, the waiver provision here is unenforceable. This decision is rooted in the unique importance of New Jersey’s LAD and the necessity for its effective enforcement. The Court notes that at least two other states have deemed similar provisions contrary to public policy. (pp. 28-32) 5. Although the Court’s holding is not derived from consideration of plaintiff’s unconscionability argument, it adds that courts may refuse to enforce unconscionable contracts or discrete contract provisions. In the instant matter, because the provision at question was contained within an employment application and plaintiff could not bargain, the contract was one of adhesion, containing indicia of procedural unconscionability. Because further analysis would require consideration of, among other factors, the public interests affected by the contract, had this matter been analyzed through the prism of an unconscionability analysis, the Court would have reached the same outcome based on the anti-discrimination concerns expressed in the LAD. (pp. 32-34) The judgment of the Appellate Division is REVERSED. CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

NJ Supreme Court Hears Argument on Employer's Duty to Household Contact

An employer's duty to a employee's household contact was the focus of an oral argument recently before the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the fiance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.


The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.

"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:
And the Court having determined to accept the question as certified."
Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186N.J. 394, 895 A.2d 1143 (2006), extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner's premises, and, if so, what are the limits of that liability rule and the associated scope of duty?

Three States have adopted the rule that the employer's duty extends to household contacts who are not spouses, ie. children and parents of the employee.

Click here to view NJ Supreme Court Video 4/25/2016  (Available for 30 days, then see below)
Click here for general information about accessing the NJ Supreme Court Video Archive

Case History (Google Scholar):
Schwartz v. ACCURATUS CORP., 118 A. 3d 347 - … - ‎NJ: Supreme Court
Schwartz v. Accuratus Corp., 7 F. Supp. 3d 490 - 2014 - ‎Dist. Court, ED
Schwartz v. ACCURATUS CORPORATION, 2014 - ‎Dist. Court, ED

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The Security of Metadata in Workers' Compensation Claims

Metadata Ethics Opinions Around the U.S.
Source: aba.org

Confidentiality is a crucial element in workers' compensation matters and the removal of metadata in electronically transmitted documents are a critical factor in the process of maintaining the level of security embraced by the system. Metadata is all hidden data in a PDF file, including text, metadata, annotations, form fields, attachments, and bookmarks.


"....Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

"While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but the opinions vary significantly. Source: The American Bar Association
The NJ Supreme Court announced yesterday, in an Administrative Determination,  that all documents in electronic format should be "scrubbed" of metadata.

"The Court addressed an important ethical question raised by New Jersey practitioners in the context of their contemporary practice: whether a lawyer who receives an electronic document may, consistent with the rules governing attorney ethics, review metadata in that document. “Metadata” is embedded information in electronic documents that is generally hidden from view in a printed document. Metadata may reflect such information as the author of a document, date(s) on which the document was revised, tracked revisions, and comments inserted in the margins, among other things. This embedded electronic information may include privileged information or other potentially objectionable, private or proprietary information. Following a careful review, the Court adopts the recommendations of the Working Group on Ethical Issues Involving Metadata in Electronic Documents, and makes a number of amendments to the Court Rules regarding electronic documents and metadata. The measures are designed to protect sensitive client data, clarify attorneys’ professional obligations, and foster education programs so that the legal community may be better equipped to meet the unique challenges inherent in exchanging documents electronically -- a modern reality that is ubiquitous in the contemporary practice of law.

“Metadata” is embedded information in electronic documents that is generally hidden from view in a printed copy of a document. It is generated when documents are created or revised on a computer. Metadata may reflect such information as the author of a document, the date or dates on which the document was revised, tracked revisions to the document, and comments inserted in the margins. It may also reflect information necessary to access, understand, search, and display the contents of documents created in spreadsheet, database, and similar applications. This embedded electronic information may include privileged information, information subject to the work product privilege, information that has not been requested in discovery, information that has been requested in discovery but is subject to an objection on which a court has not yet ruled, non-discoverable information, and private or proprietary information. Some metadata is of little or no use to a party or counsel in a litigated dispute or transactional matter. Other metadata is directly material to a factual or legal issue. If the sender has not affirmatively minimized (“scrubbed” or “stripped”) metadata in the document, some information may be revealed by simple computer keystrokes, while other metadata may be “mined” by the use of sophisticated computer software.

Professional programs are available to remove Metadata from electronic documents. See,
Sanitization—Remove hidden data from PDF files with Adobe® Acrobat® XI

NJ Supreme Court to Review An Increase of Partial Disability Award in Total Disability Claim

One of the basic tenants of workers' compensation is that awards maybe reviewed and modified where the medical status has changed.1 The NJ Supreme Court on March 14, 2016 granted Certification to review a favorable Appellate Court ruling that permitted a totally and permanently disabled injured worker to receive an increase of a prior (2006 injury) partial disability award, even though the worker had been declared to be totally and permanently disability from a subsequent (2008 injury) injury.


Mathematically, the modified award increases the money being paid for the prior injury and also increases the NJ Second Injury Fund's2  contribution to the subsequent award.

Since an Application to Review and Modify an Award could result in either an increase or decease in the disability award, it would appear not to be a disturbing factual result. It should be noted that NJ remains one of few states that still has a Second Injury Fund.

Catranbone v. Bally's Park Place, et al. , Docket No. A-3589-13T4, 2015 WL 6967487, Decided Nov. 12, 2016 (Unpublished Decision).

1.
N.J.S.A. 34:15–27 provides as follows, in pertinent part:
An agreement for compensation may be modified at any time by a subsequent agreement. Upon the application of any party, a formal award, determination, judgment, or order approving settlement may be reviewed within two years from the date when the injured person last received a payment on the ground that the incapacity of the injured employee has subsequently increased.

2.

N.J.S.A. 34:15–95 provides as follows, in pertinent part:
The sums collected under [N.J.S.A. 34:15–94] shall constitute a fund, to be known as the Second Injury Fund, out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of [N.J.S.A. 34:15–12(b) ] shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause[.]

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• Compensable Mental Stress and Conflict of Law Decisions Posted (idoctor-health.blogspot.com)
• Defense Firm Prohibited From Seeking Unfettered Medical Discovery (idoctor-health.blogspot.com)