Monthly Archives: December 2008

Dividing future workers comp medical expenses between different insurers OK, Court says

On December 19, the Superior Court of New Jersey, Appellate Division, decided a workers’ compensation case involving different insurance companies that were appealing a decision from the Division of Workers’ Compensation apportioning responsibility for future medical expenses between them.

The facts, which were not disputed, show that the employee worked for AGFA, becoming totally and permanently disabled as a result of physical activities performed at work over a 23-year period. During that time, AGFA had workers’ compensation insurance with three different companies.

Initially, the employee’s osteoarthritis symptoms arose in 1994 while the employer carried insurance with Reliance.

Then in 2000, the employee had more symptoms while her employer carried insurance with ACE. Finally, in 2001, the employee’s condition arose again while AGFA had workers’ compensation insurance with Travelers.

A physician testified at trial that it would be impossible to determine exactly when the employee’s condition became permanent.

The Division of Workers’ Compensation judge apportioned responsibility between the three insurers upon determining that the employee’s work during the three different periods of coverage contributed equally to her disability.

Two of the three insurance companies argued that the workers’ compensation judge was wrong in apportioning responsibility for future medical expenses among all three insurers, because the judge could not have determined whether the employee needed future medical treatment during each of the three periods of insurance. Both Reliance and ACE thought that only Travelers, the last insurer, should pay for the employee’s future medical treatment, under the “last injurious exposure” rule. The Appellate Division disagreed.

The Appellate Division pointed out that when the onset date of the injury or disease cannot be determined, and the employment contributed to the injury or disease during each of the insurers’ coverage periods, apportionment among the different insurers may be appropriate.

Additionally, the insurers argued that the apportionment of responsibility for future medical expenses among three different insurers creates logistical problems.  These problems include the difficulty in having three different insurers choose a medical provider and pay for that provider’s services.

Dismissing the insurers’ argument about logistics as “meritless,” the Appellate Division said there is no rule stating that only the last insurer should pay future medical expenses whenever there is a logistical problem with payment and with choosing a physician. The Court added that the insurers could always apply to the Division of Workers’ Compensation for orders designating a treating physician and addressing payment terms for future medical expenses.

Natale v. Celanese, Inc., et al., Docket No. A-0840-07T1, Sup. Ct. NJ, App. Div. (2008).

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Update on Employment Law now on Alltop

Good news: This little blog made it onto Alltop law. I added a new badge to the right-hand column.

Guess this means I’ll have to be sure and post regularly, huh?

Welcome, any and all new readers visiting via Alltop!

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Happy Holidays

Update on Employment Law is taking a little holiday break and will be posting more regularly after the holiday season.  May you and your family have a happy holiday season.

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Act in favor of fair pay

Interested in the issue of fair pay for women but don’t know what to do?  Sign the petition over at the “Out of the Way of Fair Pay” campaign, the result of a collaboration between I Am Progress (part of the Center for American Progress Action Fund) and MomsRising.org.

The petition, which will be sent to the U.S. Chamber of Commerce, is in support of the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act, both of which the Chamber opposes.

Here’s the link to the petition: Out of the Way of Fair Pay

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Vera Glaser, a journalist who wrote about employment discrimination

From The Washington Post last Sunday, an article about the reporter Vera Glaser, who wrote a five-part series on employment and policy discrimination against women after a press conference with President Nixon.

In 1969, she asked the new president, Richard Nixon, why only 3 of his approximately 200 presidential appointments had been women. Here is an audio link to an interview with Glaser wherein she discusses that Nixon press conference.

Vera Glaser recently died at the age of 92.

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Quitting due to mental stress from job not enough for unemployment benefits

Yesterday the Superior Court of New Jersey, Appellate Division, decided a case involving an employee who voluntarily quit her job due to work-related stress and was then turned down for unemployment benefits.

The employee worked as a claims adjuster until May 2007, when she quit. Two months earlier, her job duties had increased because a co-worker went out on disability.

She argued that she left work because of mental health issues that began when her mother died and that worsened with her work-related stress. Both the Appeal Tribunal and the Board of Review found that she left without good cause attributable to her work and that as a result, she could not qualify for unemployment benefits. the test for whether a decision to quit work constitutes good cause is one of ordinary good sense and prudence.

Under the law, the employee needs to do whatever is necessary and reasonable to stay employed.

To show that a pre-existing medical condition was aggravated by a workplace situation, the claimant must show competent medical evidence as to that assertion. The evidence must be more than an equivocal statement.

In this case, the claimant presented evidence of an ER visit two years before she left work in which she told the nurse that she had stress at work and she had thoughts of killing her boss.  In addition, the ER records reflected her complaints about financial and housing problems.

The court pointed out that the employee stayed in her job for two years after her ER visit, which damaged her contention that it was the work-related stress that made her quit work.

The Appellate Division agreed with the Appeal Tribunal and the Board of Review and concluded that the employee was not eligible for unemployment benefits since she left work without good cause attributable to her work.

Goodman v. Board of Review, et al., Docket No. A-1260-07T2 (Sup. Ct. Nj, App. Div 2008)

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Restaurant employers, this is how serious some employment violations can get

Andrew Cuomo
Image via Wikipedia

Today, the New York Times reports about the arrests of the two owners of the Saigon Grill in New York City. New York Attorney General Andrew M. Cuomo announced the arrests yesterday.

New York’s AG’s office is bringing a staggering number of criminal charges – over 400, according to the New York Times – against the two, who are a husband-and-wife couple.

A judge had already ordered the restaurant to pay its workers $4.6 million as part of a prior civil suit for violations of wage-and-hour laws, the New York Times reports.

These new criminal charges are related to the subject of the civil suit – the restaurant’s mistreatment of its workers. Each of the two is charged with 151 counts of falsifying business records, 46 counts of offering a false instrument for filing, and 45 counts of tampering with physical evidence. These counts come from the allegation that the couple provided the New York Department of Labor with fake payroll records during its investigation of minimum wage violations.

And then there are the counts for failure to pay wages, failure to keep records, and receipt of kickback wages. These counts stem from the couple’s alleged failure to pay minimum wages for 4 years to employees who were working 70 to 80 hours per week.

The AG’s office also alleges that the couple threatened to end delivery service at its restaurants after some of its delivery workers decided to file the civil suit mentioned earlier, leading to charges of witness tampering, coercion, and retaliation.

Finally, the AG’s office complains that the restaurant owners paid some employees off the books and failed to report their employment to New York State‘s unemployment insurance fund. The AG’s office states that the owners failed to report the employment of 65 employees, effectively cheating the New York State unemployment insurance fund and tax funds.

It’ll be interesting to follow this case through trial and see what happens. Restaurant employers, beware.

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Filed under Fair pay, unemployment