PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
03/1/2024 – 03/31/2024
SUBSEQUENT TERMINATION PETITION
Johnny L. Pierson v. Consol Pennsylvania Coal Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 28, 2024
Issue:
Whether the Employer failed to establish Claimant’s full recovery from his work injury since the last disability adjudication?
Background:
Claimant sustained an injury to his shoulder during the course and scope of his employment. Employer accepted the injury by a Notice of Compensation Payable. In 2017, Employer filed a petition to terminate Claimant’s workers’ compensation benefits. WCJ Lawton denied the 2017 Termination Petition. Employer filed a 2021 Termination Petition based upon a new IME. The WCJ granted Employer’s 2021 Termination Petition.
Holding:
The Employer’s expert did not offer essentially the same testimony during both the 2017 and 2021 proceedings and the WCJ did not fail to make an express factual determination that Claimant’s physical condition had changed since the last adjudication. In order to terminate benefits on the theory that a Claimant’s disability has reduced or ceased due to an improvement of physical ability, it is first necessary that the employer’s petition be based upon medical proof of a change in the Claimant’s physical condition. When asked whether there had been a change in Claimant’s condition from the first IME in 2017 and the second IME in 2021, employer’s expert testified that there had been a change in the four years between his examinations. The expert further indicated that his second opinion of full recovery was based in part on documentation generated after the prior adjudication. Employer’s expert unequivocally testified that Claimant’s work injury had fully healed since the prior adjudication, and that this injury was not the cause of Claimant’s continued complaints of pain. There was substantial, competent evidence supporting a change in Claimant’s physical condition since the last adjudication and the date the WCJ found Claimant to be fully recovered.
Affirmed.
William Dalzell v. Forest Hills Borough-Allegheny (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 1, 2024
Issue:
Whether employer’s expert’s testimony failed to show the required change of condition since the last disability adjudication such that the WCJ’s finding of full recovery and termination of benefits is barred by the doctrine of res judicata?
Background:
Claimant sustained a lumbar strain during the course and scope of his employment as a maintenance worker for Employer. Employer accepted the injury by a Notice of Temporary Compensation Payable, which was later converted into a full Notice of Compensation Payable. In 2020, Employer filed a petition to terminate Claimant’s workers’ compensation as of November 11, 2019. The WCJ denied the 2020 Termination Petition finding that Claimant also sustained a T12 compression fracture as part of his injury, in addition to the lumbar strain. On August 24, 2021, Claimant underwent an independent medical examination (IME) following which it was opined that Claimant had fully recovered from his work accident and that he could return to his regular-duty job as a maintenance worker for Employer. However, it was further opined that, based on Claimant’s unrelated diagnosis of osteoporosis, he should not perform any significant lifting. Employer filed the 2021 Termination Petition. The WCJ granted Employer’s 2021 Termination Petition.
Holding:
Employer’s evidence was not insufficient as a matter of law to establish a change in Claimant’s physical condition and employer’s expert did not fail to accept the adjudicated diagnosis from the prior proceeding. In order to terminate benefits on the theory that a Claimant’s disability has reduced or ceased due to an improvement of physical ability, it is first necessary that the employer’s petition be based upon medical proof of a change in the Claimant’s physical condition. Where there have been prior petitions to modify or terminate benefits, the employer must demonstrate a change in physical condition since the last disability determination. An employer’s burden is met where its medical expert unequivocally opines within a reasonable degree of medical certainty that the Claimant is fully recovered, can return to work without restrictions necessitated by the work injury and there are no objective medical findings connecting the Claimant’s substantiated complaints of pain to the work injury. Such was the case here and the WCJ found the testimony credible. Further, as Claimant’s present pain was attributable to his osteoporosis and factors unrelated to his 2019 work injury, Employer’s 2021 Termination Petition did not relitigate the adjudication initially reached in this matter but rather focused on the change in Claimant’s condition since that decision. The doctrine of res judicata is not applicable.
Affirmed.
ATTORNEY FEES ON MEDICAL BILLING
Patrice Williams v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 21, 2024
Issues:
Whether the Board erred in affirming the WCJ’s denial of an attorney’s fee based on Claimant’s medical bills?
Background:
Claimant sustained work-related injuries during the scope and course of her employment with the City of Philadelphia as a correctional officer. Claimant filed a Claim Petition, that was later amended to a Review Petition. Claimant submitted a claim for counsel fees, and in support introduced a fee agreement executed with her counsel. The Fee Agreement states, in pertinent part, “20% of all compensation payable to me for as long as I receive workers’ compensation benefits. This includes payment for all medical treatment and hospital bills. I understand that the medical provider may seek payment from me for twenty percent of the medical bills. I have been advised by my attorney that the provider cannot do so in accordance with Section 306(f.1)(7) of the Workers’ Compensation Act. The WCJ granted the Review Petition, in part. Regarding Claimant’s requested counsel fee, the WCJ found that counsel’s fee was not approved with respect to future medical benefits, as these are unknown costs, and the WCJ did not believe it can be demonstrated that Claimant understands her potential future exposure and liability regarding presently unknown costs. The Board affirmed the WCJ.
Holding:
The WCJ erred in approving a counsel fee limited to 20% of Claimant’s indemnity benefits and excluding any portion of her medical benefits. Claimant testified she understood that the Fee Agreement between herself and her counsel included 20% of both wage loss and medical benefits, and that her medical providers could “theoretically” try to obtain 20% of the medical bills from her. Claimant understood the significance of the Fee Agreement and its terms. Section 306(f.1)(7)’s prohibition on “balance billing” is not limited to only the difference between a provider’s normal fee and the Medicare-approved reimbursement rate. Rather, it prohibits a provider from billing a Claimant for any costs related to care provided under the Act and any amounts reflecting the difference between the provider’s charge and the amount paid. There may be policy reasons to regulate the counsel fee differently, depending on whether the fee was incurred for pursuing an award of medical compensation as opposed to indemnity compensation. These policy concerns should be addressed to the General Assembly. A 20% counsel fee agreement applicable to all workers’ compensation benefits received by a Claimant is per se reasonable. A medical provider that provides medical services to treat a compensable injury under the Act may not recoup directly from a Claimant any portion of any payment deducted to pay a counsel fee. The Board did not err in affirming the WCJ’s finding that Claimant does not suffer from lateral epicondylitis. The Board did err, however, in affirming the WCJ’s award of a counsel fee restricted to a percentage of Claimant’s indemnity benefits only. The Board’s order was affirmed with regard to the description of Claimant’s work injury. The Board’s order was reversed with regard to Claimant’s fee agreement with her counsel. The matter was remanded to the Board for further remand to the WCJ with instructions to approve, as written, the fee agreement introduced before the WCJ.
Affirmed, in part, and Reversed, in part.
PENALTY PETITION – SELF HELP
Anna Griffis v. Albert Einstein Healthcare Network (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 15, 2024
Issue:
Whether Employer is entitled to recoup its subrogation lien by retaining the fees and costs it would otherwise be obligated to pay over to Claimant on a weekly basis or is in violation of the Act?
Background:
Past History
Claimant was injured in the course of her employment on April 28, 2009, while employed by Employer. Her injuries were severe. She continues to be entitled to compensation for total disability. Four years after the injury, Claimant settled a medical malpractice case in the total amount of $2.088 million. Claimant then refused to reimburse Employer’s already substantial subrogation lien electing instead to challenge Employer’s right to subrogation. The WCJ’s Order of August 1, 2017 confirmed Employer’s right to subrogation, but Claimant continued to refuse to reimburse the lien. In a May 10, 2018 Decision, the WCJ ordered Claimant to reimburse Employer for its lien and found that Employer was entitled to a full suspension of Claimant’s benefits until the lien was reimbursed. This order was ultimately affirmed by the Board and by the Commonwealth Court. Claimant has failed to offer any evidence or rational theory in support of the position that the lien has been reimbursed by Claimant. Employer’s lien is not even close to being reimbursed. Because Claimant has failed to reimburse, Employer can recoup the amount due only by withholding the amount that would otherwise be due on a weekly basis. Claimant has failed to prove a violation of the Act. Employer established subrogation rights in the award, which resulted in: (i) Claimant owing a lump sum subrogation lien to Employer for past double payment of benefits, which she has refused to pay, and (ii) the balance of recovery, serving as a credit Employer is entitled to take against payment of future indemnity benefits.
Present Litigation
During the grace period, Employer was to pay Claimant its pro rata share of the costs and fees associated with recovering the medical malpractice settlement. As a result of Claimant’s failure to reimburse the lien, Employer, as of October 3, 2017, stopped paying wage loss compensation benefits, as it was Employer’s only means of recouping the substantial lien. Consequently, Claimant filed a Penalty Petition. The WCJ reasoned that Employer’s “only way to get reimbursed is to stop paying compensation due until the debt has been recovered” given Claimant’s choice not to immediately reimburse the existing lien. Because Employer can now only recover on the lien by withholding that the “pro rata” share, it may do so in a “grace period,” during which it is relieved of paying those pro rata fees and costs. The Board affirmed the WCJ.
Holding:
Employer is entitled to recoup its subrogation lien by retaining the fees and costs it would otherwise be obligated to pay over to Claimant on a weekly basis. The WCJ did not err in so reasoning, nor did the WCJ err in concluding that no violation of the Act had occurred, such that the Penalty Petition should be dismissed. When Employer unilaterally stopped paying its pro rata share of costs and fees, even if such unilateral cessation did violate the Act, it did not warrant imposition of penalties because it was justified. Ongoing suspension of benefits was warranted until the lien is paid. Here, the WCJ would only have erred in dismissing the Penalty Petition if, by the time it was filed in November 2020, the situation had fundamentally changed so as to render Employer’s continued refusal to pay improper, given the Court’s prior Order. Because Employer stopped payment of any benefits as of October 3, 2017, the fact that it will take 356.35 weeks for Employer to be paid back in full means the subrogation lien will be satisfied around May 2024, assuming Claimant does not finally pay in full. At the time Claimant filed the penalty petition, Employer was still under no obligation to make weekly payment of pro rata attorney’s fees and costs to Claimant. Accordingly, the WCJ did not err in finding no violation of the Act, and therefore, in dismissing the Penalty Petition.
Affirmed.
JUDICIAL DISCRETION – REOPENING RECORD
Lavern Powell v. Waverly Heights (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 5, 2024
Issue:
Whether the WCJ erred when the WCJ declined to reopen the record so that Claimant could submit additional evidence to prove that her work-related fall was the cause of her lower back surgery?
Background:
Claimant worked for Employer as a certified nursing assistant. Claimant suffered a work-related injury when she slipped and fell to the ground. Employer issued an amended Notice of Temporary Compensation, which provided indemnity benefits and described Claimant’s injury as a contusion of the buttocks and pain to the left side of the lower back. Claimant filed a claim petition, alleging total disability and that her injuries included additional things. Employer filed a termination petition alleging that Claimant had fully recovered. On April 6, 2022, the WCJ closed the record in this matter. Thereafter, on June 29, 2022, Claimant filed a review medical petition in which she alleged a worsening of her condition. Claimant sought to reopen the record to submit evidence that she underwent surgery on June 10, 2022. The WCJ denied Claimant’s request to reopen the record. The WCJ granted in part and denied in part Claimant’s review petition, concluding that Claimant established that she had sustained a right ankle sprain but that she had failed to establish neck and back injuries or that her work-related injury required surgery. The WCJ granted Employer’s termination petition. The WCJ gave two reasons for not reopening the record and dismissing the review medical petition as moot. First, the factual issue of whether Claimant’s work-related injury required surgery had been addressed throughout the proceedings, and the WCJ found Dr. Craven not to be credible on that issue. Second, before the close of the record, the WCJ gave Claimant time to depose her surgeon. However, Claimant declined and used the time granted to re-depose Dr. Craven. The Board affirmed.
Holding:
The WCJ has wide latitude to determine procedurally the best manner to move the petition through litigation to resolution. The decision whether to reopen the record is left to the sound discretion of the WCJ and will not be reversed on appeal absent an abuse of that discretion. There is no abuse of discretion when a party has had ample opportunity to present the evidence yet fails to do so before the record is closed. Throughout the proceedings, the parties introduced evidence regarding the extent of Claimant’s injuries and whether she needed surgery. The WCJ also found that reopening the record for Claimant to submit evidence that she underwent surgery on June 10, 2022, was unnecessary because Dr. Craven and Dr. Mendez already extensively addressed the need for surgery, and Claimant had the opportunity to depose her surgeon, but failed to do so. Claimant never objected to the record being closed without evidence of Claimant’s upcoming surgery. At the time the WCJ closed the record, the parties had introduced substantial evidence regarding the nature and scope of Claimant’s work-related injuries and whether those injuries required surgery. Moreover, Claimant was given ample time to depose an additional medical expert but declined the opportunity. Under these circumstances, there was no abuse of the WCJ’s discretion in refusing Claimant’s request to reopen the record.
Affirmed.
JUDICIAL DISCRETION – ARBITRARY AND CAPRICIOUS
Kathryn A. Lawry v. County of Butler (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 6, 2024
Issue:
Whether the Board violated fundamental WC principles by overturning the WCJ’s credibility determination?
Background:
Claimant suffered a work-related injury which Employer accepted as a right thumb strain/sprain. The injury was later expanded to include right ulnar collateral ligament tear and reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS). In 2019, a WCJ denied Employer’s prior Termination Petition. The WCJ, in 2019, found that Employer failed to prove that Claimant’s physical condition had changed since a 2015 decision. In 2020, Employer filed the current Termination Petition alleging that Claimant fully recovered as of June 17, 2020. The WCJ Steiner denied Employer’s Termination Petition. Ruling that, while Employer met its burden of proving that Claimant fully recovered from her right thumb strain/sprain and right ulnar collateral ligament tear, Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS. The WCJ explained that gold standard for diagnosing RSD or CRPS is the Budapest criteria, and Employer’s expert gave his opinion without specifically addressing it, and without any evidence of any recent objective diagnostic tests to determine whether Claimant had continuing RSD/CRPS. The Board reversed the WCJ’s decision holding that the WCJ’s determination that the expert’s testimony as to full recovery from RSD/CRPS, was not credible, based on failure to reference the Budapest criteria, and was arbitrary and capricious.
Holding:
The arbitrary and capricious standard is not only the traditional standard applied to credibility determinations. Credibility determinations are more than a series of individual findings. Rather, they represent the evaluation of a total package of testimony in the context of the record as a whole and reflect subtle nuances of reasoning that may not be fully articulated, nor even fully appreciated, by the fact-finder. The Court must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. Clearly, the WCJ’s credibility determination of Employer’s expert was not based on a single medical opinion as the Board declares. Rather, it was based on his extensive knowledge of the case from presiding over previous Termination Petitions, the expert’s heavy reliance on surveillance videos which he used to support his physical examination and opinions, Claimant’s expert’s credible, convincing, and persuasive medical records, and Claimant’s medical evidence. Although the WCJ may have misstated the Kesselring Court’s footnote regarding the Budapest criteria, viewing the WCJ’s reasoning as a whole, the Court did not feel that the WCJ’s determination was arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.
Reversed.
CAUSAL RELATIONSHIP
Reynaldo Hernandez, Sr. v. Four Seasons Produce, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 5, 2024
Issue:
Whether the WCAB erred in affirming the WCJ’s denial of his claim FOR lack of causal relationship?
Background:
Claimant was a machine operator for Employer for 21 years, until February 23, 2021, when he was forced to retire because of back pain and radiating leg pain resulting from spinal stenosis.
Holding:
Claimant’s condition did not suddenly manifest itself in an incident on February 23, 2021, when he stopped working. The WCJ found Employer’s testimony the more credible, determining that there was not an obvious causal connection between Claimant’s condition and his strenuous work activities given the degenerative process that underlay his injury. Claimant’s testimony alone was not sufficient to support a grant of the claim. Even assuming that claimant’s expert’s testimony was unequivocal, to prove causation it must also be found to be credible. The WCJ is the ultimate factfinder and is empowered to determine witness credibility and evidentiary weight. Here, the WCJ found that Employer’s expert was more credible that Claimant’s.
Affirmed.
IMPAIRMANT RATING EVALUATIONS
Darren Hoffman v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 19, 2024
Issue:
Whether retroactive application of Act 111 is unconstitutional?
Background:
In 2016, Claimant sustained a work-related injury to his right thumb and right upper extremity in the course of his employment with Employer. On October 14, 2021, an IRE opined that Claimant had a whole-person impairment rating of 10% based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), Sixth Edition. Employer filed a modification petition and the WCJ modified Claimant’s total disability benefits to partial disability. The Board affirmed.
Holding:
Claimant’s arguments on appeal have already been reviewed and rejected by the Court in precedential decisions. Accordingly, the Court followed its precedential decisions and rejected Claimant’s arguments.
Affirmed.
SUBROGATION – POLICE OFFICER
ALLOWANCE OF APPEAL TO THE PA SUPREME COURT – GRANTED
Barbara Tiano v. City of Philadelphia and PMA (WCAB)
Supreme Court of Pennsylvania – Petition for Allowance of Appeal – GRANTED
Holding: March 20, 2024
The Petition for Allowance of Appeal is GRANTED. The issue, as stated by Petitioner, is:
Whether the Commonwealth Court’s decision conflicts with this Court’s decisions, such as City of Erie v. WCAB (Annunziata) (Pa. 2003), Oliver v. City of Pittsburgh (Pa. 2011), Stermel v. Workers’ Compensation Appeal Board (City of Philadelphia) (Pa. Cmwlth. 2014), and Pennsylvania State Police v. Workers’ Comp. Appeal Bd. (Bushta) (Pa. 2018), because a self-insured, government entity, is prohibited from subrogating Heart and Lung Benefits Act Benefits from a third-party settlement received by Claimant, an employee, who was injured in the line of duty as a Philadelphia Police officer in a non-motor vehicle case.
Additionally, the parties were directed to address the statutory basis for subrogation as well as the application of Topelski v. Universal S. Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962), to non-motor vehicle accident cases in light of the recent line of aforementioned cases involving motor vehicle accidents.
PENNSYLVANIA LEGISLATIVE REVIEW
As of March 31, 2024, the Senate L&I Committee is still reviewing these House Bills and it has not sent them back to the Senate for review, alteration or consideration.
Regular Session 2023-2024
House Bill 760
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for compensation payable in periodical installments.
Subject: Direct Deposit for Workers’ Compensation
This bill seeks to amend Act 338 of 1915 (Workers’ Compensation Act) by allowing individuals who qualify for workers’ compensation to request their compensation through direct deposit into an account of their choosing. These types of payment methods would be similar to the methods that are currently used to pay benefits to those that qualify for Unemployment Compensation. Implementation of this change was recommended unanimously by the Workers’ Compensation Advisory Council (WCAC) last year.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
House Bill 930
Short Title: An Act amending the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act, in liability and compensation, further providing for schedule of compensation. Expanding Workers’ Compensation for Permanent Disfigurement
Subject: Expanding Workers’ Compensation for Permanent Disfigurement
This bill seeks to extend existing workers’ compensation eligibility for permanent disfigurement from 275 weeks to 400 weeks and clarify that Claimants are not precluded from collecting both total or partial disability benefits and disfigurement benefits simultaneously. It would also provide workers’ compensation coverage for disfigurement regardless of where it occurs on their body.
Last Action: Referred to LABOR AND INDUSTRY, May 9, 2023 [Senate]
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
03/01/2024 – 03/31/2024
CAUSAL RELATIONSHIP
Bello v. United PanAm Fin. Corp.
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-2986-21; 2024 WL 958364
Decided: 03/06/2024
Background:
Jeffrey Bello filed petitions seeking medical and temporary workers’ compensation benefits. The petitioner alleged that he suffered numerous injuries which were related to exposure to chemical fumes from the air conditioning system in his personal car, which was also used for work.
The petitioner was hired by respondent to sell auto financing at dealerships. He used his own car, but the respondent provided a gas card, credit card, and GPS-enabled company phones. The petitioner had his car serviced about 3 months after he started working for respondent. He testified that he noticed a chemical odor in the car. When he later turned on the air conditioner, he noticed a stronger chemical odor and “what felt like hot pepper” on his tongue. He testified that he was “coughing and spitting up blood.” He went to the emergency room that evening complaining of eye pain, throat pain, headache, and numerous other symptoms. The petitioner was diagnosed with chemical exposure. He purchased a new car and reported that he continued to have symptoms.
Respondent filed a workers’ compensation claim on the petitioner’s behalf with its insurance carrier, but the petitioner was terminated before receiving a determination. Following his termination, the petitioner was notified that his claim was denied. The petitioner then filed the petitions.
Both parties retained toxicology experts. Petitioner’s expert testified to prove causation. Both of respondent’s experts testified that they found no causal relationship between the complaints and diagnoses and alleged exposure to the chemical fumes from the car’s air conditioner. The WCJ found petitioner’s expert was not credible and that the petitioner’s evidence had little or no weight. The WCJ found that the respondent’s experts were credible and concluded the petitioner failed to establish a causal relationship.
Holding:
On Appeal, the petitioner argued the WCJ erred in dismissing the petitions based on the court’s qualification of the respondent’s experts and their testimony as well as finding his expert not credible.
The Court found no error in the WCJ’s qualification of respondent’s experts and testimony as well as the WCJ’s decision to discredit the testimony of the petitioner’s expert. The Court found no basis on which to disturb the court’s order.
Affirmed.
WORKERS’ COMPENSATION LIEN
New Jersey Transit Corp. v. Joseph
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
NO. A-1194-22; 2024 WL 1172784
Decided: 03/19/2024
Background:
Defendant Darshelle Joseph was injured during the course and scope of his employment with NJ Transit. Joseph brought a workers’ compensation action against NJ Transit as well as a third-party action against the tortfeasor involved in the accident. Joseph was notified of NJ Transit’s right to recover all money paid on the workers’ compensation claim from the third party potentially liable for the injuries.
NJ Transit paid Joseph workers’ compensation benefits. Joseph settled with his uninsured motorist insurance carrier and received payment. NJ Transit filed suit seeking reimbursement of its statutory workers’ compensation lien. The trial court denied NJ Transit’s application for order to show cause as premature. NJ Transit appealed.
Holding:
On Appeal, NJ Transit argues Joseph must reimburse NJ Transit for its statutory lien. NJ Transit also argued that the lien should be paid out of the sum recovered from the third-party. They additionally argued that this payment should be paid immediately upon resolution of the third-party action, regardless of the status of their workers’ compensation claim.
Section 40 of the Workers’ Compensation Act creates a lien in favor of the employer for benefits paid that attaches to the employees’ recovery against other tortfeasors. The court interpreted the statute to mean the employer’s right to reimbursement is conditioned on, and triggered by, the employee’s recovery of any sum from a third-party tortfeasor. The statute does not specify when the lien must be satisfied, but it makes clear the specific amount of the lien cannot be determined until the employer’s liability is finalized. When the employer has notified the third-party of its claim, therefore perfecting its lien, the lien is paid to the employer before the employee recovers from the third-party. The employer’s failure to perfect its lien does not prevent the lien from attaching. The employee is still required to reimburse their employer. The court further determined that the lien is not required to be satisfied immediately upon the employee’s recovery. Here, the court stated that there was no indication that the lien had any protection as the funds had already been disbursed. The matter was remanded to the trial court to ensure the lien is protected until the workers’ compensation action is resolved.
Vacated and Remanded.
COURSE AND SCOPE OF EMPLOYMENT
Latshaw v. Lakewood Twp. Police Dep’t
NO. A-3702-21; 2024 WL 1250146
Superior Court of New Jersey, Appellate Division – Unpublished Opinion
Decided: 03/25/2024
Background:
Dawn Latshaw was employed by Lakewood Police Department (“Employer”) as a dispatcher. She was injured in a car accident while she was picking up food during a meal break. During the trip, she did not perform any work-related tasks. Latshaw filed a workers’ compensation claim for benefits. Employer argued she was not injured in the scope of work.
The case was tried before a WCJ. It was undisputed that, in accordance with the CNA, dispatchers were paid for their lunch breaks, even if they left the premises. Employer argued that the accident occurred while she was on a personal errand and therefore the injuries were not compensable. The WCJ found that Latshaw’s injuries were not compensable because she was injured on a personal errand.
Holding:
While the Appeal was pending, the Supreme Court decided Keim v. Above All Termite & Pest Control, 256 N.J. 47, 55 (2023).
There are four rules which define commencement and termination of employment in different scenarios. The scenarios include: (1) the premises rule; (2) the special mission rule; (3) the paid travel time rule; and (4) the authorized vehicle rule. Here, Latshaw was in her own car so the 4th scenario could not apply. The injury took place on her way back to the police station, so it was clearly not on the premises and covered by the premises rule. Latshaw was getting food for herself and was not required to leave the premises. She was not performing any work duties when the accident occurred. This is in contrast to the employee in Keim, who was injured while driving to get more supplies from his workplace at his employer’s discretion. Therefore, Latshaw is not covered under the special mission rule. Finally, the paid travel time rule applies when (1) the employee’s injury is sustained while going to and from a job site separate from the place of employment and (2) the employee is paid for the time spent traveling. While Latshaw stressed that she was paid for her time during her lunch break, this alone did not establish compensability. The rule establishes that the employee be travelling to and from a job site. Here, Latshaw was traveling to a personal destination.
Affirmed.
NEW JERSEY LEGISLATIVE UPDATE
Senate Bill 4059
This bill establishes the 21st Century Injured Workers’ Access to Justice Fund. This bill revises the cap on contingency fees to a prevailing party in workers’ compensation matters from 20 percent to 25 percent. In addition, it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind.
Last Action: The bill did not move past the Senate.
