2014 NJAJ MEADOWLANDS SEMINARWhen Workers Compensation and Employment Claims Meet

Jamison M. Mark, Esq.

Mark Law Firm403 King George Road, Suite 201

Basking Ridge New Jersey

Adam M. Kotlar, Esq.

Law Offices of Adam M. Kotlar, Esq.1913 Greentree Road, Suite C

Cherry Hill, New Jersey

What is Workers Compensation

• NJSA 34:15-1• Social legislation giving up jury system for

prompt payment of benefits• No Fault System• Medical Treatment• Temporary Total Wage Payments• Permanent Partial or Total Disability

What is the N.J. LAD?

• NJSA 10:5-12 (New Jersey Law Against Discrimination)Unlawful Employment actions to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. • NJSA 10:5-5(q) Definition of Disability

How Does Workers Comp Work?

• Work related injury / Occupational Exposure• Report to an Employer/Supervisor• Begin medical treatment• Temp Payments while under care / light duty• Curative/Restorative Treatment until MMI• Return to work may require Functional

Capacity Examination (FCE).

Statute of Limitations

• NJ LAD = 2 years•WC Retaliation = 2 years

Section 40 Lien on Settlement• NJSA 34:15-40: 3rd Party Lien on Settlement

3rd persons liability to employee for injury or deathEmployer remains obligated to EmployeeRecovery from 3rd person any sum obtained by injured employee

• What is the lien amount?

• When the gross third party settlement amount is equal to or greater than the total award of compensation benefits, the amount of the credit is generally two-thirds of the amount payable by or on behalf of the employer less $750.00.

• When the gross third party settlement amount is less than the total award of compensation benefits, the credit is generally two-thirds of the gross third party settlement amount less $750.00.

WC “Disability ” or “Permanency” Claim

• Respondents (Employer) v. Petitioner (Employee)• Injured Hands, Arms, Fingers, Legs, Foot, Eyes and

Ears – schedule based upon 600 weeks • Determination of Permanency by Experts• Percentage of Disability – Objective functional loss –

no pain / suffering• Order Approving Settlement • Dismissal with Settlement (Sect. 20)

PHYSICAL v. PSYCHIATRIC WORKERS COMPENSATION CLAIMS

• While any type of injury is compensable, lets review the big divide:– Physical Injury– Physical Injury with Psychiatric Overlay– Purely Psychiatric Injury

Employment Psych v. Physical

• Emotional injuries – Always pled in LAD• Physical injuries – Assault & Battery• What about: “emotional injuries that are

accompanied by physical manifestations”

Psych Claim in WC Barred in LAD Claim?• Is there a Fear of Exclusive Remedy Bar?

• NO FEAR! WC does not require your E.D. claim to be in WC jurisdiction!

• NJSA 34:15-8: “If an injury or death 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 injure or killed, except for intentional wrong.” (I.E. THE LAD)

• Millison v. E.I. duPont DeNemours & Co., 101 N.J. 161, 165 (1985), then Laidlow v. Hariton Machinery Co., 790 A.2d 884 (N.J. 2002). Defined Intentional Wrongs

• WC does not act as an intentional bar to the LAD. Khair v. Campbell Soup Company, No. Civ. A.93-1626 , 1995 WL 366123 (D.N.J. June 12, 1995).

• Tarr v. Ciasulli, 853 A.2d 921 (N.J. 2004). – E.D. inherent in LAD

• But, what if you file an E.D. claim in WC as a Psych injury?– GET IT OUT!

What is the WC Exclusive Remedy?

• You give up your rights to sue employer

• Applies only to “Negligent Conduct”

• Does Not apply to “Employer’s Intentional Conduct”

LAD Disability & WC Injury

• Are they really one and the same?• If you have a WC injury, may have a LAD

Disability?• If you have an LAD Disability, not always a WC

injury• Judge: “Hangnail can be a disability if it

prevents you from doing your job.”

Treatment & Accommodations Of An Employee

• Interactive Process in a WC Case?– Of course

• Evaluation by WC Doctors• Functional Capacity Test– To Go or Not to Go?

Termination while on leave!– Can’t do the job, no accommodation

necessary

Workers Compensation Retaliation

NJSA 34:39.1:• Workers Compensation Act provides, in part: • It shall be unlawful for any employer or his duly

authorized agent to discharge or in any other manner discriminate against an employee as to their employment because the employee has claimed or attempted to claim Workers' Compensation benefits from such employer.

• See Lally v. Copygraphics, 85 N.J. 668, 670–71, 428 A.2d 1317 (1981).

Proof Required for WC Retaliation• To establish a prima facie case for retaliatory discharge under the

WCA, an employee must prove: – (1) that he made or attempted to make a claim for workers' compensation;

and – (2) that he was discharged in retaliation for making that claim.’ “

– Cerrachio v. Alden Leeds, 223 N.J.Super. 435, 442, 538 A.2d 1292 (App.Div.1988)

• Such retaliation may be shown, for example, by proof that an employee who filed a compensation claim and then was discharged had been queried by his supervisor about how his compensation “cases” were going, and who later was told, “if you weren't such a troublemaker you would still have a job here.” Cerracchio, supra, 223 N.J.Super. at 440, 443, 538 A.2d 1292.

WC DISCRIMINATION CLAIMS

CLAIMS USUALLY ARISE IN TWO SITUATIONS:

When there is temporal proximity between a decision to discharge and a work-related injury; or temporal remoteness, but an earlier expressed hostility to work related injuries, or workers’ compensation benefits.

It is not necessary for the employee to have actually filed a workers’ compensation claim, but rather it is enough for the employee to simply have taken some action in furtherance of his or her right to pursue workers’ compensation benefits. See, Stewart v. County of Hudson, Morris v. Siemens Components, Inc., 928 F.Supp. 486(D.N.J. 1996).

WC TERMINATION

• Evidence of filing or attempting to file a WC claim?– What happens if an Employer sets up exams and

evaluations but an employee fails to show– Employee fails to follow work rules or other procedures

which may, in and of itself, be considered the “final straw.”• WC: Employee must show “Specific Evidence of

Intent.” • Employer must then demonstrate termination was a

Legitimate Non-Discriminatory Reason• Employee’s Burden of Proof

Definition of LAD Retaliation

• Pursuant to the LAD it is unlawful: “[f]or an employer, because of the disability ... of any individual, ... to discharge” such a person “unless justified by lawful considerations[.]” N.J.S.A. 10:5–12. The statute covers plaintiffs with actual or perceived disabilities, and does not require a particular level of severity for the disability to place the plaintiff in a protected class. See Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 495, 446 A.2d 486 (1982).

Workers Compensation Filing Isn’t By Itself Protected Activity Under LAD?

• A federal court recently held that a cashier who was discharged one year after filing a workers’ compensation claim failed to state a claim under the New Jersey Law Against Discrimination (“LAD”) or the New Jersey Conscientious Employee Protection Act (“CEPA”), holding that filing a workers’ compensation claim is not considered protected activity under either statute.

• filing a worker's compensation claim involves the pursuit of benefits or wages by the employee. It does not involve an employee opposing a discriminatory employment practice.

Davis v. SuperValu Inc., No. 13-414, 2013 U.S. Dist. LEXIS 56341 (D.N.J. Apr. 19, 2013).

CIVIL REMEDY

• Yes - Civil remedy in the nature of a tort claim – Lally v. Copygraphics case

• Administrative cause of action – Hybrid• Claims against Public Entity – No NTC necessary (NJSA 59:1-5)– Brook v. April, 294 N.J.Super 90 (1996)

Civil Remedy • Damages based on discharge or termination following the claim, or

attempted claim, for workers’ benefits.

• In the ordinary course, the damages that flow from such a claim includes restoration of position, back pay, and potentially compensatory and punitive damages.

• Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination; provided, if such employee shall cease to be qualified to perform the duties of his employment he shall not be entitled to such restoration and compensation.

• Though not often utilized, the statute also provides for a civil penalty which may be imposed by the state.

WC Aiding & Abetting / Fraud

• WC Insurance Adjuster & Employer• Adjuster knowingly and substantially assisted

employer in discrimination against Employee• Any person makes a false or misleading

statement to evade full payment of benefits. N.J.S.A. 34:15-57.4

FINAL WORD

• Plead under the correct statute!• Know the difference between LAD (NJSA 10:5-

1) and NJ WC (NSJA 34:15-1).