Alvarado v. J&J Snack Foods Corp., 397 N.J. Super. 418 (App. Div. 2008)

Rafael Alvarado, an employee of J&J Snack Foods Corp., died on April 12, 2005 from an injury he sustained at work. J&J deemed Rafael's death compensable and acknowledged its obligation to provide the 70% dependent benefit rate to those persons who were Rafael's dependents. Though there was disagreement as to the proper allocation of benefits between Rafael’s three daughters, J&J disbursed dependency benefits on October 6 in equal shares to the three daughters “pending a court order or agreement as between parties.” Because J&J made an offer to pay full dependency benefits within 26 weeks of death, the workers’ compensation judge concluded that the employer was entitled to the limitation on an attorney-fee award set forth in N.J. Stat. Ann. § 34:15-64(c), and concluded that he was limited to awarding $50 in attorney fees without regard to the amount of work done because J&J offered to pay full benefits.

N.J. Stat. Ann. § 34:15-64(c) provides that, when compensation has been offered within 26 weeks of an employee’s death, the attorney fee “shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered.” It further states that,“[w]hen the amount of the judgment, or when that part of the judgment or award in excess of compensation, offered . . . is less than $200, an attorney fee may be allowed not in excess of $50.” In summarizing this body of law for the benefit of workers’ compensation judges, the Appellate Division explained that “the offer must be made (a) at a reasonable time after notice of injury and extent of disability, (b) prior to any hearing and (c) prior to the expiration of the applicable twenty-six-week period. Twenty-six weeks is not a per se reasonable time; it is only a cut-off. A reasonable time might be much less.” The court concluded that it was “readily apparent” that the compensation judge did not consider all of the relevant facts of the case in order to determine whether the twenty-five-week delay between the date of death and the payment of benefits was reasonable. As a consequence, the court reversed the order allowing a $50 fee and remanded the matter to the workers’ compensation judge for reconsideration. If the judge still determines that the respondent is entitled to the statutorily reduced fee, he must then reconsider the award of only $50. In determining the reasonable amount of an attorney fee for Aaliyah's attorney, the compensation judge must measure the difference between the amount of dependency benefits paid voluntarily to Aaliyah, not all three daughters, and the amount of dependency benefits awarded to Aaliyah, not all three daughters, under the settlement.

Thus, the court held that where competing claims for dependency benefits arise, “the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award [in favor of each petitioner] in excess of the amount of compensation, theretofore offered, tendered in good faith or paid [to that petitioner]”. N.J. Stat. Ann. § 34:15-64(c). In no case shall the award be limited to $50 except when the amount “offered, tendered in good faith or paid” to the petitioner is equal to or greater than the amount awarded to that petitioner.

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Acikgoz v. New Jersey Turnpike Authority, 398 N.J. Super. 79 (App. Div. 2008)

            On May 4, 2001, petitioner Yakup Acikgoz was in his car on his way home after working the morning shift at the New Jersey Turnpike Authority’s maintenance yard. John Lowden, also an employee of the Turnpike Authority who had spent most of that day on “union release time,” was on his way to the Turnpike Authority’s facility when he collided with petitioner on an access road near the facility. Petitioner filed both a tort action against Lowden in the Law Division and a claim petition against the Turnpike Authority in the Division of Workers' Compensation. The Law Division transferred jurisdiction to the Division of Workers’ Compensation, where the judge determined that neither individual was in the course of his employment at the time of the accident, that therefore N.J.S.A. § 34:15-8 did not apply, and that petitioner's accident was not compensable. The judge dismissed the claim petition and relinquished jurisdiction of the tort action to the Law Division. Lowden argues that the compensation judge erred in determining that neither he nor petitioner was in the course of his employment at the time of the accident.

N.J.S.A. § 34:15-8 provides: “If an injury ... is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed…” N.J.S.A. § 34:15-36, commonly referred to as the premises rule, explains that employment commences “when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer.” Generally, an employee who is not physically on the employer's premises is not in the course of the employment. “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred?” For purposes of the Act, control exists “when the employer owns, maintains, or has exclusive use of the property.”

The Court of Appeals accepted the compensation judge’s determination that neither individual was in the course of in his employment at the time of the accident and thus affirmed his ruling that § 34:15-8 did not apply. The court concluded that the Transit Authority could not be considered to control the overpass because it was not used exclusively by employees and the employees were not required to use that overpass to reach the facility. Furthermore, it would be impractical to conclude that the mere fact that an Authority employee was involved in an accident on a road owned and maintained by the Authority could serve as a sufficient basis to conclude the accident occurred in the course of petitioner's employment because the Authority owns and maintains the entire New Jersey turnpike system. Therefore, the bar contained in § 34:15-8 did not apply and petitioner could proceed with his tort action against Lowden.

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NEW JERSEY WORK ACCIDENT LAWYERS CONSIDER MEDICAL BENEFITS PROVISION OF THE NEW JERSEY WORKERS COMPENSATION ACT TO PROVIDE NECESSARY AND REASONABLE MEDICAL TREATMENT FOR INJURED EMPLOYEES COVERED BY THE ACT.

According to N.J.S.A. 34:15-15: “an employer shall furnish such medical, surgical and other treatment and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible.”   As such, New Jersey work injury employees who cannot medically have the reduced function of the member or organ restored are entitled to permanency benefits. 

According to the New Jersey statute, if the employer refuses or neglects to provide medical treatment, the work injury employee may secure such treatment and the employer will become liable for the payment, provided that the employee requested the employer to furnish the treatment and the employer refused or neglected to do so, or, unless notification is impossible due to the nature of the injury or the circumstances where so peculiar as to justify.  

Case law interpreting the statute has held that as long as there is competent medical evidence and the treatment is reasonably necessary to cure or relieve the effects of the injury, there may be the necessity for continuing medical treatment if the function of the member or organ is thereby increased. 

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Fackelman v. Lac d’Amiante du Quebec, 398 N.J. Super. 474 (App. Div. 2008)

Holding: A workers’ compensation insurer that performs industrial hygiene studies for a plaintiff’s employer owes no duty to educate and warn employees of any danger.

            Plaintiff commenced an action against Aetna, among others, after discovering in 2002 that he had asbestosis as a result of being exposed to asbestos while employed at the Berlin facility of Owens Corning Fiberglas Corporation. Aetna, as a workers’ compensation insurer, performed various air sample surveys, industrial hygiene studies, and special hazard studies at the Berlin plant and met with Owens Corning representatives to review the results and to prompt Owens Corning to reduce high exposure levels and contain dust in the plant. Aetna did not inform individual employees of the test results. Plaintiff argued that Aetna was liable to him because it undertook to perform industrial hygiene surveys which were necessary for the protection of employees and it failed to warn the employees of elevated dust levels or to educate them on measures to avoid or to minimize the danger caused by the substances to which they were exposed. The trial court granted summary judgment for Aetna and plaintiff appealed.

The Appellate Division affirmed.  New Jersey work injury lawyers review the holding that an insurer who performs industrial hygiene studies for an employer does not have a duty to educate and warn employees of any danger.  New Jersey workers compensation lawyers further review the court’s explanation that the precise issue on appeal had been raised in other cases and had been decided in favor of the insurer in each instance. There was no basis to depart from that well-settled New Jersey law, which was consistent with Restatement (Second) of Torts § 324A, governing liability of third parties for negligent performance of an undertaking. That section states that one who undertakes to render services “which he should recognize as necessary for the protection of a third person” is liable to the third person for harm “resulting from his failure to exercise reasonable care” if (a) that failure increases the risk of such harm, (b) “he has undertaken to perform a duty owed by the other to the third person,” or (c) “the harm is suffered because of reliance of the other or the third person upon the undertaking.” In affirming, NJ work injury attorney John F. Renner understands that the court rejected plaintiff’s argument that liability should have been imposed on Aetna because it assumed the duty of the employer to provide a safe place to work, as well as the argument that plaintiff and other employees reasonably relied on Aetna to communicate to them the known dangers in their work environment. Consistent with New Jersey law, the court held that the factual record provided no basis for recovery by plaintiff against Aetna.

The court similarly found no validity to either plaintiff’s argument that ordinary principles of tort liability supported the recognition of a duty by Aetna to reduce the risks of harm at the Berlin facility and to warn the employees directly of those risks or his argument that he was a third-party beneficiary of the contractual relationship between Aetna and his employer.

Call on New Jersey lawyer, John F. Renner, an experienced New Jersey Workers Compensation lawyer.

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Quereshi v. Cintas Corp., Docket Number A-1848-08T3, Appellate Division.
Opinion by Cuff, P.J.A.D. Decided and approved for publication May 28, 2010.
On appeal from the New Jersey Department of Labor, Division of Workers’ Compensation.
Claim Petition No. 2002-27659. DDS No. 39-2-8052.

Held: An award of attorneys’ fees is mandatory under N.J.S.A. § 34:15-28.1 when an employer unreasonably or negligently delays or refuses to pay temporary disability benefits. The judge of compensation is not limited by the statutory formula in N.J.S.A. § 34:15-64 governing fee awards following an award of benefits. Rather, the fee award should reflect the actual cost to obtain the improperly withheld benefits.

Petitioner Kubra Quereshi filed a motion for temporary disability benefits and medical benefits. The motion was granted and the judge of compensation, in addition to ordering payment of temporary disability benefits to petition, ordered respondent employer to pay past due benefits to petitioner, to reimburse petitioner for out-of-pocket medical expenses, and to pay ongoing temporary disability benefits, medical benefits, and attorneys’ fees. When the employer failed to timely pay the temporary benefits, petitioner moved pursuant to N.J.S.A. § 34:15-28.1 for the imposition of a penalty and other relief. The judge of compensation found that respondent had paid the benefits more than thirty days after entry of his order with no excuse for the late payment. He assessed a penalty of 25% of the temporary benefits owed to petitioner, but did not award attorneys’ fees. Petitioner appealed, arguing that the award of attorneys’ fees is mandatory, not discretionary as argued by respondent.