Workers’ Compensation Attorneys named to 2018 Best Lawyers® List

By admin

September 22nd, 2017

PR&A Workers’ Compensation Department Chairman, Gary E. Adams, was recently named to named to the 2018 Best Lawyers® list.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.  Their lists have been published for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals.  Candidates are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Mr. Adams is partner of the law firm and chairman of the Workers’ Compensation department. He has been representing the interests of injured workers and union members for his entire legal career. He has been certified by the New Jersey Supreme Court as a Workers’ Compensation Trial Attorney and has also been recognized as a Super Lawyer in the field of Workers’ Compensation Law. Mr. Adams is rated AV by Martindale-Hubbell, the highest attorney rating given by that organization.  He is currently the Chairman of the Workers’ Compensation Section of the New Jersey State Bar Association.

Also named to the Best Lawyers List was Chairman Emeritus of the Workers’ Compensation department, Bruce P. Miller.   Mr. Miller served as co-chairman of the Workers’ Compensation Department and is currently “Of Counsel” to the firm.

Neal S. Solomon was likewise named to the list.   Mr. Solomon was awarded for his work in the litigation – real estate category.

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Medical Examinations in Workers’ Compensation Cases

By Bruce P. Miller

March 7th, 2017

When an individual files a Workers’ Compensation claim alleging that he/she suffered injuries as the result of an on-the-job accident, the law gives the defense (Respondent) the right to require that a medical examination be performed by a doctor of the defendant’s choosing for the purpose of evaluating the Petitioner’s injuries, providing a diagnosis of the injuries and also providing an opinion of the extent of permanent disability.

That information is, under the law, set forth in a report that is issued on behalf of the defense and is utilized in the case to establish the nature and extent of permanent disability and a basis for an award of disability on behalf of the Petitioner.

Not infrequently, the Petitioner fails to attend the medical examination with the doctor who has been chosen to perform same.

Several issues become involved when this occurs.  Questions arise regarding the Petitioner’s availability for the examination, the convenience of the location of same, the length of time that the Petitioner was provided with notice of the examination and the convenience of the location of the examination, primarily having to do with the distance between the Petitioner’s home and the doctor’s office.

When the doctor’s appointment is missed, at least on a second occasion, typically the doctor will charge a missed appointment fee and the Respondent will attempt to make the Petitioner responsible to pay same.

The Judge of compensation will be called upon to decide whether a missed appointment fee is appropriate, whether it should be paid by the Petitioner and if so, the amount of same.

Essentially, the Judge will utilize a common sense approach to this issue.

Suffice it to say that this will not become an issue if the Petitioner advises his/her lawyer with respect to any problems attending the examination and the timing of same.  The distance that has to be traveled should be discussed along with any other problems that can be anticipated insofar as attendance at the examination is concerned.

This is a problem that is usually easy to anticipate and important to avoid since it can create a distraction from the important issues in the Workers’ Compensation case.

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New Jersey Workers’ Compensation Laws On Partial Permanent Disability

By Bruce P. Miller

March 15th, 2016

New Jersey Workers’ Compensation law allows for awards for partial permanent disability as well as total permanent disability. A partial permanent disability award involves injuries that render the worker permanently disabled but not unable to work. That worker can continue to work and go about the activities of his/her life but is entitled to an award for whatever disability has been sustained, anywhere from 1% loss of use of the body to 99% loss of use of the body.

The law also encompasses injuries that render a worker totally and permanent disabled. In this situation, the person is unable to work for the rest of his/her life.

In some instances, a permanent disability award reflects more than one accident and injury. In that circumstance, the individual has been injured in the past but was able to continue to work. Thereafter, as the result of a subsequent injury, the worker is considered completely unable to work and entitled to total disability benefits.

In such a situation, the employer for whom the individual was working at the time of the most recent injury is required to pay total disability benefits.

In addition, an organization of the State entitled the Second Injury Fund, which is administered by the Attorney General’s Office, pays benefits that, in combination with the award paid by the employer, result in total disability benefits.

Once an individual receives a total disability award, the benefits are paid for life and no further benefits are payable for the final injury.

However, an issue that has become controversial in the New Jersey Workers’ Compensation Courts has arisen. The context is as follows. A worker receives a partial permanent disability award for an injury that occurred, for example, five years ago. That injury was sustained to the person’s back and entitled him to an award of 40% partial permanent disability. The person was able to and, in fact, continued to work with the disability that had been sustained.

However, the individual thereafter sustained another injury as the result of a new accident to the neck. The two injuries in combination result in total permanent disability to the worker who has been rendered unable to work. Under these circumstances, the employer for whom the Petitioner was working at the time of the last injury is responsible for example, for 60% of the entire disability for the neck injury.

The Second Injury Fund pays 40% of total permanent disability, reflecting the earlier pre-existing partial disability award. Thus, the last employer pays 60% of permanent total disability and the Second Injury Fund pays 40% of total permanent disability, which in combination results in a 100%, lifetime disability award

The controversy that has arisen has to do with whether following the entry of the two awards a person can seek further permanent partial disability benefits if in fact it can be proven that the pre-existing back injury has grown worse; that is to say, whether the individual is entitled to continue to receive lifetime benefits based upon the most recent neck injury and also, at the same time, increased partial permanent disability benefits for the back.

The employer or its insurance carrier will argue that since the person was already collecting a 100% total permanent disability award, that employee is not entitled to any further permanent disability benefits because 100% is the maximum award possible.

The counter argument is that since the overall disability, the first having to do with the back and the second having to do with the neck, is made up of two different injuries and arose out of two completely different accidents, the individual should not be precluded from being awarded further benefits for the original injury sustained to the back if it has grown worse.

If that were to occur, the worker would continue to receive two different awards, the first reflecting lifetime benefits for the neck injury and also would receive benefits for whatever increase in disability has been sustained as the result of the back injury. For example, if the increased disability for the back has increased from 40% to 50%, the worker would be entitled to receive that additional payment at the same time that the worker continues to receive total disability benefits for the neck injury.

This issue is being considered by the New Jersey Supreme Court in the case of Catrambone v. Bally’s Park Place, A-3589-13T4. A decision is anticipated in the near future.

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Court Confirms Workers’ Compensation Carrier’s Priority Lien Against The Proceeds Of An Injured Worker’s Third Party Recovery

By Gary E. Adams

February 25th, 2016

The Superior Court of New Jersey, Appellate Division, recently upheld a workers’ compensation judge’s decision holding that the workers’ compensation insurance carrier is entitled to receive most of an injured worker’s settlement proceeds from a civil lawsuit he had filed against the manufacturer of the machine that had caused his injury while at work.

New Jersey Workers’ Compensation Law provides that when an injured worker pursues a workers’ compensation claim for an injury at work, and also pursues a civil lawsuit against a third party (in this case, a machine manufacturer), the workers’ compensation carrier is entitled to receive reimbursement of two-thirds of any benefits it paid to the injured worker, less up to $750.00 in costs incurred by the attorney in pursuing the third party claim.

In this recent claim (Cabrera v. Cousins Supermarket), the attorney pursuing the claim against the machine manufacturer spent over $15,000.00 in costs to attempt to establish that the machine that caused Mr. Cabrera’s injury was defective. Unfortunately, the attorney was only able to recover $25,000.00 on Mr. Cabrera’s behalf. After reimbursing the attorney’s costs and paying the attorney’s fee, Mr. Cabrera received nothing. Nevertheless, the workers’ compensation carrier demanded repayment of the amounts it had paid on Mr. Cabrera’s behalf.

The Court ruled that even though Mr. Cabrera had received nothing from the third party recovery, the workers’ compensation carrier was entitled to the return of two-thirds of the amount of benefits it had paid out on Mr. Cabrera’s behalf. According to the Court’s ruling, the workers’ compensation carrier’s lien takes priority over the worker’s right to receive a third party recovery, as well as his attorney’s right to receive reimbursement of costs incurred in pursuing the third party claim.

The inequity in this outcome is obvious. The workers’ compensation carrier, which did nothing to pursue the manufacturer, gets paid before the injured worker and his workers’ compensation attorney. The end result – the worker ends up with nothing and the third party attorney eats his costs. This inequity, unfortunately, will be not cured until the New Jersey Workers’ Compensation Statute is amended to limit how much the carrier can take from a worker’s third party recovery. Until that happens, this decision will only discourage attorneys from pursuing third party claims, especially in cases that require the use of specialized experts, as was the case here.

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Fraud Allegations in Workers’ Compensation Claims

By Bruce P. Miller

February 20th, 2015

With increasing frequency, insurance companies are raising the defense of fraud on the part of a Petitioner in Workers’ Compensation cases. There is an anti-fraud provision in the Workers’ Compensation law. It is a fourth-degree crime for making “a false or misleading statement, representation or submission concerning any fact that is material to that claim for the purpose of wrongfully obtaining the benefits.” The alleged fraudulent statements must have been “purposely or knowingly” made.

If the Judge of Compensation finds that such fraudulent statements or representations had been made, the Court “may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.”

Instances of fraud that have been alleged by insurance companies in Workers’ Compensation cases include a Petitioner providing false or misleading information insofar as his/her health history is concerned, medical treatment history and even exaggerations of his/her symptoms, such as inability to participate in certain activities and experiencing pain.

When analyzing the facts of a Workers’ Compensation case in order to ascertain whether fraud has been committed, New Jersey’s Appellate Courts have consistently held that the Workers’ Compensation law is socially beneficial legislation and must be interpreted liberally and inclusively. Moreover, the anti-fraud provision is only intended to root out fraudulent claims. It is not meant to merely to test “an injured person’s ability to remember every detail of a lengthy medical history or to accurately determine what may be material for purposes of receiving treatment or other benefits.” Bellino v. Verizon Wireless, 435 N.J.Super 85 (App. Div. 2014).

Our Appellate Division has emphasized that the Workers’ Compensation law is intended to afford coverage to as many injured workers as possible; accordingly, “all elements of the anti-fraud provision must be proven by competent evidence for a Motion to Dismiss to prevail on those grounds.” Our courts have emphasized that it is not enough that the Respondent show that the injured worker made an inaccurate or false statement or omitted some facts. Rather, the Respondent must show that the injured worker acted purposefully or knowingly with the intent to receive benefits that he/she knew they were not entitled to and that the false statement or omission was made specifically for the purpose of falsely obtaining benefits “to which the worker was not entitled.”

Moreover, our Courts have stated that even if it is shown that an injured worker has lied or given false statements, if that false statement has no connection to the injury itself the Courts will generally overlook the fraud that may have been committed.

The Workers’ Compensation law is well known to represent “social or remedial legislation” and is to be liberally construed. Accordingly, although injured workers should avoid giving false or misleading information or omitting important facts for the purpose of falsely obtaining benefits, the Workers’ Compensation judicial system in New Jersey is clear that an injured workers’ memory does not have to be perfect, and that individual’s recital of symptoms need not be exact in every detail.

If it is apparent that the worker’s information is essentially accurate and truthful and given in good faith, the fraud statute will not provide a barrier to the award of Workers’ Compensation benefits.

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Can I Receive Workers’ Compensation for Injuries Occurring off the Job Site?

By Barry Dratch

February 5th, 2015

It is well established that an employee is entitled to workers’ compensation benefits if he or she is injured at the job site in the course of his employment.  N.J.S.A. 34:15-7 states, “To prevail in a claim for Workers’ Compensation, a petitioner must prove that his or her injury arose out of and in the course of employment.”

However, will that employee be covered if he or she is in a car accident on the way to work?  What about if the employee trips and falls in a parking lot before entering the job site?  In order to determine eligibility for workers’ compensation for injuries occurring off the job site, New Jersey Courts will examine the facts particular to each case.  Eligibility is determined by the “going and coming rule” and its exceptions.

N.J.S.A. 34:15-36 states (in pertinent part):

“Employment shall be deemed to commence when an employee arrives at employer’s place of employment to report for work and shall terminate when the employee leaves the place of employment… provided, however, that when the employee is required by the employer to be away from employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment… of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by employer.”

The “going and coming” rule is intended to preclude the award of workers’ compensation benefits to accidental injuries sustained during routine travel to and from employee’s regular place of work, based on the principal that routine travel does not  yield a special benefit to employer nor does it expose the employee to risks peculiar to the industry.

While the “going and coming” rule precludes many injuries that occur off the jobsite from eligibility, there are exceptions to this rule.  These rules were spelled out by the New Jersey Supreme Court in Zelasko v. Refrigerated Food Express, 128 N.J. 336 (1992).  The two exceptions to the “going and coming rule are the special mission except and the travel time exception.

1)      The “special mission” exception allows compensation at any time  for employees:

a)      required to be away from the conventional place of employment;

b)      if actually engaged in direct performance of “employment duties”

2)  The travel time exception  allows portal to portal coverage for employees

a)      paid for travel time to and from distant job site or

b)      using and employer-authorized vehicle for travel time to and from a distant job site.

Another instance where an injury which occurs off of the job site could be compensable are the parking lot cases.  If an injury occurs in a parking lot before an employee checks into work or after he leaves work, compensability will depend on the employers control over where employees park.  If an employee can park wherever he wants, then compensability will not begin until the employee actually enters the job site.  However, if an employer can control where an employee parks, the employee is covered from the point of arrival at that location.  For example, if the employer owns and controls a parking lot, and instructs its employees to park in the back of the lot so that customers can park closer, injuries which occur in that parking lot would be compensable.  In that scenario the employer owned the lot and instructed Petitioner where to park for the convenience of its customers, a benefit to the employer.

As discussed, it is fact specific as to whether an employee injured before entering the job site would be eligible for workers compensation benefits.  If the insurance carrier denies your claim for benefits based on the “going and coming” rule, you should consult an attorney to determine if the facts of your case meet one of the exceptions to the rule.

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New Jersey Workers’ Compensation Claims: Increasing Use of Functional Capacity Evaluations

By Gary E. Adams

January 29th, 2015

In the past few years, the use of Functional Capacity Evaluations (FCE) has become increasingly common in New Jersey Workers’ Compensation matters. The studies are being ordered by workers’ compensation carriers as well as the physicians used by the workers’ compensation carriers to provide treatment to injured workers.  The manner in which these tests are currently being used can be a significant concern for the injured worker.

Functional Capacity Evaluations are tests designed to measure the work capacity of the person being tested.  These tests are performed by a physical therapist, usually in conjunction with a computer program designed to analyze the results of the test.  The person being tested is asked to perform various physical maneuvers involving lifting, bending, reaching and walking.  The results of the test are interpreted using a computer program, which then sets forth the physical capacity of the individual to perform sedentary, light, medium or heavy duty work. The tests are physically demanding, and can take three to four hours or longer to complete.

Ideally, these tests can be used to measure an injured worker’s readiness to return to the work force after an absence due to a work-related injury, so that an accommodation can be made to allow the injured worker to return to work in a limited capacity. Unfortunately, the reality can be quite different.

In many cases, FCEs are used by employers as a basis to terminate the employee after an injury.  These tests frequently indicate that an injured worker does not have the physical capacity to return to his or her regular job.  The employer then has a basis to terminate the employee as not being fit for duty.  Many employers have a no “light duty” policy, and insist that the employee returning to work after an injury return to their regular jobs without restrictions. An FCE indicating that the worker is not yet ready to perform full duty is then used as a basis to terminate employment.

FCEs in workers’ compensation matters are arranged and paid for by the workers’ compensation carrier.  The companies who perform these tests generate a substantial amount of revenue for performing them.  Not surprisingly, the tests frequently display a pro-employer bias.  It is not unusual for the reports to indicate that the injured worked failed to fully cooperate with the testing.  Workers will report that despite giving their best efforts, they were unable to perform certain parts of the test due their injuries.  This is frequently reported as non-cooperation by the worker, implying that the injured person is magnifying their symptoms.

In many situations, workers’ compensation carriers order FCE studies too soon.  It is inherently unfair for the injured worker to be tested for his or her ability to perform the physical aspects of his or her job when they are still recovering from the effects of their injury.  Yet in many cases, the FCE is ordered as soon as three weeks after the accident takes place.

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Mental Hospitals – One Of The Most Dangerous Work Environments In The United States

By Gary E. Adams

November 25th, 2014

A recent article in the New York Times brought to light an issue that workers in mental hospitals have known for years- that they work in one of the most dangerous work environments in the United States.

The author, who works in a mental hospital, observes that “patients, even violent ones, are often given a shocking amount of freedom.  As a consequence, every day, across the country, these hospitals record dozens of assaults by patients against staff members and other patients — a situation that, thanks to expanded patients’ rights laws and state health bureaucracies, we can do almost nothing about”.

As a result, thousands of employees of mental health facilities are assaulted every year across the country, with little or no recourse against those who assaulted them.

The author points out that “state hospitals are ill-prepared to deal with these often dangerous and violent persons. A large part of the problem stems from our legal system, where the notion of patients’ rights has triumphed over common sense and safety. For example, despite criminally insane patients being remanded by the courts for psychiatric treatment, many states allow them to refuse both therapy and medication.

A second difficulty is bad hospital policy: At many state forensic facilities, there are no guards, and untreated psychotic patients are allowed to mix freely with the staff. Perhaps because the extent of violence in forensic hospitals is difficult to imagine, it’s easier for hospital administrations, elected state officials and governors to ignore.

Still harder to explain is the silence of mental health activist and regulatory groups — the American Civil Liberties Union, the Occupational Safety and Health Administration and the National Alliance on Mental Illness. Generally at the forefront of worker and patient safety issues, these organizations have inexplicably done very little.

There are a few obvious responses. Judges can require that patients accept therapy and medication. Hospitals should have trained guards, and should be required to build intensive treatment units to house the 15 percent of patients responsible for the majority of the violence. These units would separate the patients from the rest of the population, and from each other. Hospitals should also create opportunities for more family involvement in the patients’ care — a proven factor in reducing violent behavior.

These hospitals are meant to be places where mentally ill people go to get better. Instead, as one patient at PattonStateHospital in California told The Los Angeles Times, “All day long it’s all about sorrow, sadness and hopelessness.”

Stephen Seager, the author of the New York Times article, is a psychiatrist at NapaStateHospital and the author of “Behind the Gates of Gomorrah: A Year With the Criminally Insane.”

In Mercer County, two facilities operated by the State of New Jersey house patients deemed to be either criminally insane or a danger to themselves or others- Trenton Psychiatric Hospital and the Ann Klein Forensic Center.  In my 35 years of experience in representing workers at these facilities, I’ve heard these same problems described above hundreds of times.  Violent patients injure other patients, nurses, aides and medical security officers on a regular basis.  Even when attacked, the workers are extremely limited in the manner in which they can defend themselves, even if their lives are in danger.  Termination can result if the worker is deemed to have defended him or herself too aggressively.  Understaffing, especially among security personnel, seems to be the norm.

For those who work in these facilities and sustain injuries, their only legal recourse in most situations is to file a claim under New Jersey’s Workers’ Compensation Law.  This statute provides them with a wage replacement while out of work recovering from their injuries, payment of medical expenses related to the injury, and a monetary award if a permanent injury is sustained.

Given the frequency of injuries at these institutions, it would seem prudent for the State to take steps to prevent these injuries by better controlling the violent patients who are responsible for causing them- but little seems to change.

(To access Stephen Seager’s New York Times Op-Ed Article referenced above please click here.)

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Your Right to a Safe Workplace – Compensation for Your Injuries

By Bruce P. Miller

February 20th, 2014

Reality cable shows like Deadliest Catch and Ax Men thrill millions of viewers with an inside look at the two most dangerous jobs in America: logging and commercial fishing.  But you don’t have to get tangled in a runaway fishing net or struck by a falling tree to get hurt on the job. Every day, 12 Americans go to work and never come home. Every year, nearly 3 million more suffer debilitating injuries.

Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous, you can request an inspection from the Occupational Safety and Health Administration (OSHA), a federal agency. Click here for more information, including educational resources for both employees and employers.

Workers’ compensation, which is regulated on the state level, covers medical bills, lost wages, and disability benefits for employees injured on the job. If you are hurt at work, report your injury to your employer immediately. Download this handy checklist to collect information for your claim. If your employer doesn’t report your claim or the insurer denies your claim, you may need a lawyer. Contact us anytime for more information.

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Workplace Injury … Good News/Bad News

By Gary E. Adams

February 14th, 2014

The good news is America’s workplaces are safer now than ever. Injuries in 2012 were at an all-time low and fatalities were the second lowest on record, according to the 2014 State of Safety report from the National Safety Council. “Through collaborative education and outreach efforts, and effective law enforcement, these numbers indicate that we are absolutely moving in the right direction,” said Secretary of Labor Thomas Perez.

That being said, there were still 4,383 fatal work injuries in 2012, according to the Census of Fatal Occupational Injuries, and nearly 3 million injuries. Employers, employees, health and safety professionals and government officials must continue working together to keep workplace safety top of mind.

10 Safety Tips for Employees

Here are 10 tips to help employees create a safer work environment for themselves and others:

  1. Be aware. Know the hazards particular to your workplace.
  2. Learn good posture. While at your desk, keep your shoulders in line with your hips. And use good form when lifting.
  3. Take regular breaks. Many work-related injuries occur when a worker is  tired. Schedule tough tasks when refreshed.
  4. Don’t take shortcuts. Skipping proper procedures when using dangerous tools and machinery is the leading cause of workplace injuries.
  5. Keep emergency exits clear. And make it easy to reach emergency shutoffs.
  6. Report unsafe conditions to your supervisor. Don’t be shy if you see a workplace hazard. Your supervisors are legally obligated to ensure your safety.
  7. Use mechanical aids whenever possible. Don’t carry something heavy when you could use a wheelbarrow, conveyor belt, forklift or other aid.
  8. Stay sober. About 3 percent of workplace fatalities occur due to alcohol and drug use.
  9. Reduce stress. Stress can make it hard to concentrate.
  10. Wear proper safety equipment. Earplugs, hard hats, safety goggles, gloves, etc., greatly reduce the risk of workplace injury.

Click here for complete details. The National Safety Council also offers 25 steps to a safer office. And here are seven safety tips for employers

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