PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
05/1/2024 – 05/31/2024

ANTI-REFERRAL PROVISION

700 Pharmacy v. Bureau of W.C. Fee Review Hearing Office (SWIF)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: May 16, 2024

Issue:

Whether the Hearing Officer properly denied and dismissed the Applications on the basis of the anti-referral provision?

Background:

700 Pharmacy (Pharmacy) and State Workers’ Insurance Fund (Insurer) cross-petitioned for review of the decision and order of Hearing Officer David Torrey (Hearing Officer) of the Bureau of Workers’ Compensation Fee Review Hearing Office (Bureau) denying and dismissing five fee review applications (Applications) Pharmacy brought in connection with prescriptions it filled for a Claimant.  The four other appeals were also disposed of concurrently, consistent with the rationale of this opinion, in separate, unpublished memorandum opinions.  At a hearing held on October 15, 2019 Pharmacy’s founder and co-owner testified that he also owns and serves as managing member of an employee leasing company called Induction Works, which employs the pharmacists who work at Pharmacy, as well as a management company called Medicine Works, “which set up the pharmacies and administers the same.” Medicine Works undertakes the administrative work of the pharmacies and receives a fee from them. If a physician needs to communicate with Pharmacy, that physician would communicate with Pharmacy, not Induction Works.  In March 2019, Pharmacy and Induction Works became parties to a contract formalizing an “employee leasing” arrangement.  Testimony refers to Induction Works as a pass-through entity, which employs all pharmacists and other personnel for Pharmacy, and which has a “billing team” of about six individuals.  The Hearing Officer concluded in relevant part that the Insurer met its burden of proving a prohibited self-referral because the physician who wrote the prescriptions had an admitted financial interest in Pharmacy.

Holding:

The Pharmacy argued that the anti-referral provision did not apply to pharmacies or pharmaceuticals because these were not specifically listed in the Act. The court rejected this argument, interpreting the term “goods or services” to include medications.  Importantly, the Court found the anti-referral provision was intended to cover a broad range of medical goods and services, including pharmaceuticals.  The anti-referral provision provides in relevant part that “it is unlawful for a provider to refer a person for laboratory, physical therapy, chiropractic, radiation oncology, psychometric, home infusion therapy or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral.”  In its last sentence, the anti-referral provision states that no claim for payment shall be presented by an entity to any individual, third-party payer or other entity for a service furnished pursuant to a referral prohibited under this section.  In its regulations, the Department provides that “a provider may not refer a person for certain treatment and services if the provider has a financial interest with the person or in the entity that receives the referral.  Drugs are “goods” for the purposes of the anti-referral provision. The Act does not define “goods,” but reviewing a dictionary definition of “goods” confirms this reading.  They are also assets with a “tangible, physical form.”  Accordingly, drugs and pharmaceutical services fall comfortably within the anti-referral provision’s “goods or services” catchall.  The Court concluded that the plain text of the anti-referral provision covers drugs and pharmaceutical services, and, as the Pharmacy did not dispute that the prescribing physician had a financial interest in Pharmacy, that the Fee Review Applications involved provider who referred a person for goods or services, to an entity in which the provider had a financial interest.

Affirmed.

 

NOTICE OF THE INJURY

Erie Insurance v. David Heater (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: May 29, 2024

Issue:

To whom must an injured self-employed employee provide notice of a work injury within 120 days of the injury when the Claimant is essentially the employer?

Background:

Claimant was the owner of Employer and was its sole employee. Claimant sustained a disabling injury while coming off a ladder and tripping over a shovel.  While Claimant is his own employer, and it could be argued that notice was instantaneous, the Insurer is the insuring party in this instance, and notice must be received by the insurer within the time limits of the Act.  Even if Claimant called his insurance agent, this is not proper notice, as the agent is not the insurer. Claimant has not offered evidence of such notice to Insurer at any time following the injury. The WCJ concluded that Claimant was precluded from receiving any compensation under Section 311 of the Act based on his untimely notice to Insurer. The Board reversed the WCJ’s decision that Claimant failed to give timely notice of the work injury.

Holding:

The Court concluded that Section 311 is ambiguous where there is unity of identity between the injured worker and sole proprietor employer.  The Court turned to principles of Statutory Construction Act to aid in ascertaining the legislature’s intent. First, interpreting Section 311 using the broader definition of employer and requiring an injured Claimant/employer to provide notice to the insurer within 120 days in these circumstances meets the object to be obtained by that provision in that its purpose is to protect against stale claims.  Second, the consequences of interpreting Section 311 otherwise creates a potential class of Claimants, those who are sole proprietors and injured, who are not subject to the forfeiture/loss of benefits provision of Section 311 for failing to give notice within 120 days of the injury, unlike other, non-self-employed Claimants who must give such notice to their employers.  Both of these supports the use of the broader definition of “employer.” Under the circumstances of this case, where a Claimant is both the injured employee and the sole proprietor/employer, the “employer” to whom the Claimant must notify of a work-related injury for the purposes of Section 311 is the insurer that bears the ultimate liability for the claim. This allows the insurer to ensure that the prompt and complete investigation into the claimed injury, that would normally be performed by a disinterested employer, can be performed to protect against stale claims, thereby meeting the purpose of Section 311.  Because Claimant did not provide timely notice to Insurer under Section 311, no compensation was allowed, and the Claim Petition is barred.

Reversed.

IMPAIRMENT RATING EVALUATIONS

Lawrence Powell v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: May 7, 2024

Issue:

Whether Act 111 is unconstitutional?

Background:

Claimant underwent an IRE performed using the Sixth Edition, second printing, of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment.  The IRE report assigned Claimant a whole-body impairment rating of 8% and determined Claimant had attained maximum medical improvement.  Employer thereafter filed a Petition to Modify Compensation Benefits requesting an amendment of Claimant’s WC temporary disability status from total to partial.  The WCJ granted Employer’s modification petition.  The Board affirmed.

Holding:

Based on Court precedent, Claimant’s argument that Section 306(a.3) violates the Nondelegation Doctrine was rejected.  Further, Act 111’s retroactive credit provisions do not violate the Remedies Clause of the Pennsylvania Constitution as a Claimant has no vested right to ongoing benefits indefinitely and it is not an extraordinary circumstance that a Claimant’s indemnity benefits may be reduced or end before a Claimant believes they should.  Therefore, Claimant’s vested rights have not been abrogated by Act 111.

 Affirmed.

 

CAUSATION – FATAL CLAIMS

Igor Dnistranskiy v. Brite Logistics (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: May 10, 2024

Issue:

Whether the WCJ’s decision goes against the law with respect to heart attack causation?

Background:

Decedent suffered a heart attack while at work on March 15, 2017 and passed away that same day. Later that year, Claimant filed a fatal claim petition seeking benefits on behalf of Decedent’s four children alleging that his death from cardiovascular disease was a result of his employment duties as a truck driver with Employer. The petition acknowledged that Decedent died from cardiovascular disease and asserted that his death occurred in the course and scope of his employment.  Claimant’s expert opined that the physical exertion of driving the tractor trailer over more than a two-day period, with this being the first time Decedent had driven such a large vehicle, was sufficient to overtax his cardiac reserve and cause the ischemic event and sudden cardiac death, and that Decedent’s work duties as a tractor trailer driver for Employer were a substantial contributing factor in his death.  Employer’s expert opined that there was no relationship between the work Decedent performed for Employer and the cardiac arrest causing his death. To the contrary, Decedent’s death was caused by risk factors which caused his long-standing coronary artery disease and ultimately his cardiac arrest, which coincidentally happened while he was at work. The WCJ issued a decision and order denying the fatal claim petition, finding that Decedent’s work activities were not a substantial contributing factor in his death. The Board affirmed.

Holding:

In the specific context of a fatal claim petition, the surviving family member must demonstrate, by substantial evidence, the elements necessary to merit an award of workers’ compensation benefits. Claimant failed to meet her burden because the WCJ explicitly rejected the opinion of her medical expert as to whether Decedent’s heart attack was causally related to his employment. When presented with conflicting medical evidence, a WCJ may accept the testimony of one medical witness over that of another.  The burden in this fatal claim petition rests with Claimant and Employer was not required to present expert medical testimony in opposition thereto. The fact that Claimant failed to meet her burden is dispositive.  Employer’s expert’s testimony was clear and unequivocal, and Claimant’s argument takes the statements out of context.   This expert explicitly testified, to a reasonable degree of medical certainty, that Decedent’s death, while occurring while at work, was unrelated to his work. Instead, the fatal heart attack was caused by his long-standing, preexisting conditions of untreated high blood pressure, smoking, and being overweight and that these preexisting conditions had nothing to do with Decedent’s employment, a fact with which Claimant’s expert agreed. The Board did not err in affirming the decision of the WCJ.

Affirmed.

 

CAUSATION – NEED FOR EXPERT TESTIMONY

Ruddy Rosario v. Westport Axel Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decision: May 6, 2024

Issues:

  1. Whether there was an obvious temporal relationship between the work activity and the injury? 2. Whether the WCJ erred in refusing to permit his new counsel to present medical testimony?

Background:

Claimant was hitting a piece of equipment with a hammer and his left testicle began to hurt. Although nothing came into contact with Claimant’s testicle, he nevertheless experienced significant pain in that location.  He was unable to find anyone to whom he could report his injury, so he left work.  Thereafter, Claimant sat in his car in pain and ultimately called his wife because he could not drive his vehicle.  Claimant’s testicle began to swell when he returned home. He went to the emergency room two days after the incident. He eventually experienced a wage loss and provided notice to the employer.  While the WCJ found Claimant’s testimony regarding his pain complaints and medical history to be credible, she nevertheless deemed Claimant’s testimony concerning the causation of his pain complaints and their relatedness to his employment to be less than credible, as he is not a medical expert and cannot determine the medical relationship between a specific event and a medical condition.  The WCJ found Claimant’s expert’s testimony to be credible because it was uncontradicted and he was candid about his inability to determine the cause of Claimant’s condition and his need for surgery.  The WCJ determined that Claimant failed to meet his burden of proving that he sustained a compensable work-related injury. The Board affirmed.

Holding:

The WCJ did not misapply the law, exercise manifestly unreasonable judgment, or show partiality, prejudice, bias, or ill-will. Quite to the contrary, she exhibited a desire to provide Claimant every available opportunity to make his case. There was no obvious causal relationship between the work incident and Claimant’s injury; thus, unequivocal medical evidence was necessary to establish Claimant’s entitlement to benefits. No such testimony was presented.  Further, the WCJ did not err or abuse her discretion by denying Claimant’s new counsel the opportunity to present additional medical evidence.  An obvious injury is one that immediately manifests itself while a Claimant is in the act of doing the kind of work which can cause such an injury. Under such circumstances, the Claimant’s testimony is sufficient to connect the injury to the Claimant’s employment, and additional medical testimony is not required.  While Claimant felt immediate pain in his testicle area while using a hammer to strike and loosen a metal part, Claimant did not testify that this was the mechanism of his injury.  Further, the admission of evidence is within the sound discretion of the WCJ. A WCJ may properly exclude evidence which is irrelevant, confusing, misleading, cumulative, or prejudicial. A WCJ’s determination regarding the admission of evidence will not be overturned without a showing of an abuse of discretion. The medical evidence that counsel secured, just days before the WCJ’s extended deadline concluded, was not beneficial to Claimant’s case. Such an outcome does not entitle Claimant to yet another opportunity to buttress his case. An entry of appearance by new counsel just before a record closes does not dictate that additional evidence can or should be presented.

Affirmed.

 

MEDICAL MARIJUANA – REIMBURSEMENT

Rae Ann Malak v. Maxim Healthcare Services (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: May 20, 2024

Issue:

Whether the Medical Marijuana Act bars Employer from reimbursing Claimant’s out-of-pocket medical marijuana costs because Employer, which is self-insured, is neither an insurer nor a health plan?

Background:

Claimant sustained a compensable work-related injury.  Claimant filed the Penalty Petition alleging that Employer violated the WC Act by failing to reimburse Claimant for the out-of-pocket costs she had incurred for medical marijuana, which was a reasonable, necessary, and related treatment for Claimant’s work injury. The WCJ denied and dismissed Claimant’s Penalty Petition. The Board affirmed.

Holding:

Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. Further, there is no statutory language which prohibits insurers from reimbursing Claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary.  Coverage is different and distinct from reimbursement and while the plain language of Section 2102 of the MMA states that insurers cannot be required to provide coverage for medical marijuana, there is no statutory language which prohibits insurers from reimbursing Claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary.  Thus, Section 2102 of the MMA does not bar Employer from reimbursing Claimant’s out-of-pocket medical marijuana costs.  Since the employer is not prescribing marijuana, but rather reimbursing the Claimant for his lawful use thereof, the employer is not in violation of the Federal Drug Act.  Accordingly, the Board erred by affirming the WCJ’s holding that Employer’s reimbursement of Claimant’s out-of-pocket medical marijuana costs violates federal law.  The denial of reimbursement was not based on whether the medical marijuana was not reasonable and necessary, or whether the out-of-pocket costs therefore were not properly submitted to Employer, but rather, the denial was based on Employer’s contentions that said reimbursement was barred by the MMA and would expose Employer to criminal liability.  However, those issues were not before the WCJ.  Because the Court held that the MMA does not prohibit reimbursement for Claimant’s out-of-pocket costs for her medical marijuana used to treat her work injury and does not expose Employer to criminal liability, Employer violated the WC Act by not reimbursing Claimant.  Accordingly, the WCJ erred by denying Claimant’s Penalty Petition.  The Board’s order was reversed, and the matter was remanded to the Board to remand to the WCJ to determine what, if any, penalty should be imposed.

Reversed and Remanded.

 

OFFSETS – PENSION BENEFITS

George Pisarz v. Montour LLC (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided: May 16, 2024

Issue:

Whether the Pension offset is calculated as of the date the employee was entitled to receive the benefits, as opposed to the date the employee actually received the benefits?

Background:

Claimant sustained a low back injury during the course and scope of his employment with Employer and was awarded wage loss benefits.  In 2021, while Claimant’s wage loss benefits remained suspended per an earlier order of a WCJ finding “voluntary removal” which was pending on appeal, Employer wrote to Claimant advising that since he did not begin receiving his pension as of April 1, 2019, as required by federal law, Employer would commence it for him on September 1, 2021. Employer subsequently sent Claimant a pension check dated September 1, 2021, in the gross amount of $150,336.96, representing Claimant’s pension benefits going back to April 1, 2019. Employer than began sending Claimant monthly pension checks, in the amount of $4,846.39 each, beginning October 1, Claimant received all the pension checks but did not deposit any of them until February 2022.  On December 16, 2021, Employer filed a Notice of Workers’ Compensation Benefit Offset indicating that it was taking a weekly offset credit of $1,331 against Claimant’s wage loss benefits for weeks beginning April 1, 2019, through September 30, 2021, based on Claimant’s receipt of the lump sum check representing his pension payments during that time period. The notice also indicated that beginning October 1, 2021, and ongoing, Employer was taking a weekly offset credit of $1,048.15 for the same.  The WCJ concluded that Employer was entitled to a retroactive offset and denied Claimant’s Petition to Review Offset.   The Appeal Board affirmed.

Holding:

Under section 204(a) of the Act severance benefits paid by the employer directly liable for the payment of compensation and the benefits from a pension plan, to the extent funded by the employer directly liable for the payment of compensation, which are received by an employee shall also be credited against the amount of the award.  The regulation at 34 Pa. Code §123.8 further clarify the scope and circumstances for this offset.  There was no dispute that Claimant had received a lump sum representing pension payments from Employer beginning April 1, 2019 through September 1, 2021.  The timing of claimant’s receipt of the lump sum payment does not prohibit an offset.  Claimant’s argument ignores that he had eventually received pension benefits for the time period at issue. To rule that Employer is not entitled to an offset under the instant facts would allow Claimant to receive his full workers’ compensation benefits and full pension benefits, a result that is not contemplated by the Act or regulations.

Affirmed.

 

PETITION FOR ALLOWANCE OF APPEAL – SUPREME COURT OF PENNSYLVANIA

Jason Yoder v. McCarthy Construction, Inc., et al.
Petition of: Jason Yoder – No. 127 EAL 2023
May 16, 2024

The Petition for Allowance of Appeal was GRANTED. The issues, as stated by petitioners, are:

    1. Whether this Court should overrule its decision in Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903 (1999), and hold that the General Assembly’s 1974 amendments to the Workers’ Compensation Act, making it mandatory for all employers to obtain workers’ compensation coverage, necessitates denying “statutory employer” status to general contractors unless they in fact have been called on to pay workers’ compensation benefits to the injured employee of a subcontractor?
    2. Whether this Court should overrule its decision in LeFlar v. Gulf Creek Indus. Park #2, 511 Pa. 574, 515 A.2d 875, 879 (1986), holding that the statutory employer defense is unwaivable in the nature of subject-matter jurisdiction, in a case such as this where the supposed statutory employer was not called on to pay any workers’ compensation benefits?

III.       Whether the Superior Court failed to properly apply the factors that must be strictly established under McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), for a general contractor to qualify as a statutory employer in the light most favorable to the plaintiff as verdict-winner, necessitating at the very least a retrial at which the jury would resolve the disputed factual issues concerning whether McCarthy qualifies as Yoder’s statutory employer under the McDonald test?

 

PENNSYLVANIA LEGISLATIVE REVIEW

As of May 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.  This proposed legislation was presented to the Pennsylvania Bar Association, House of Delegates, at the House meeting on May 10, 2024 and received the  overwhelming support.

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
05/01/2024 – 05/31/2024

COURSE AND SCOPE OF EMPLOYMENT

Terhune v. Port Authority of New York and New Jersey
Superior Court of New Jersey, Appellate Division – Unpublished Opinion

  1. A-3206-22; 2024 WL 2042233

Decided: 05/08/2024 

Background:

Albert Terhune (Petitioner) worked for Port Authority (Respondent) since 2007. The petitioner was assigned to mandatory snow duty on December 14, 2013. He was compensated to stay at a hotel for 12 hours and remove snow for 12 hours. The petitioner had a pre-existing back injury which his doctor recommended light exercise for. On this day, the petitioner went to the gym and then to the pool at the hotel. The petitioner injured his back upon entering the pool. The petitioner was taken to the hospital and placed out of work. His general supervisor advised him to fill out an accident report.

The petitioner filed a Claim Petition, which the respondent denied, asserting the injury did not arise out of the petitioner’s employment. A WCJ found that the accident occurred when petitioner was engaged in the performance of his duties and while in the course of his employment. This was because the petitioner was at the hotel to fulfill his snow duty requirement. All of his expenses at the hotel including transportation and meals were paid for by the respondent. The WCJ found that staying at the hotel was for the purpose of facilitating the respondent’s snow removal policy, which constituted a special mission.

Holding:

On Appeal, the respondent argued the petitioner was not on a special mission because it was not in direct performance of his job while his accident occurred. It also argued that the special mission was not to provide greater protection than a worker performing their job duties on site. The respondent contends that “whether petitioner was on a special mission is determined by whether the employee had embarked on a personal errand – that would have been compensable if carried out by an on-premises employee – as opposed to direct performance of his duties.” The court was not convinced by these arguments.

When looking at whether an accident arose out of the course and scope of employment, the court looks at factors such as: (1) the customary nature of the activity; (2) the employer’s encouragement or subsidization of the activity; (3) the extent to which the employer managed or directed the recreational enterprise; (4) the presence of substantial influence or actual compulsion upon the employer to attend and participate; and (5) the fact that the employer expects or receives benefit from the employee’s participation in the activity.

The Court found that the petitioner’s performance and attendance here was not a personal errand or recreational. He was mandated by his employer to be at that hotel and was on shift for snow removal, which satisfies the course of employment requirement of the special mission rule.

The employer additionally argued that the petitioner was engaged in a recreational activity, which the Court rejected. This argument was not raised in the lower court. The Court additionally did not need to reach this argument because there was sufficient evidence that the petitioner was in the course and scope of employment.

Affirmed.

 

WORKERS’ COMPENSATION ACT PRECLUSION

Donnerstag v. Winchester Garden
Superior Court of New Jersey, Appellate Division – Unpublished Opinion

  1. A-1916-22; 2024 WL 2065943

Decided: 05/09/2024

Background:

Eileen Donnerstag was a live-in caregiver for a resident of Winchester Garden (Respondent). Donnerstag was sick and lost her voice for three days. She noticed mold while working and became concerned it was causing her health problems, so she notified her employer. Donnerstag later ended her employment believing the mold caused her health issues and it was not remedied.

Litigation began and motions were filed. The respondent’s motion to dismiss with prejudice was granted in part, dismissing the complaint without prejudice, and a proposed amendment by Donnerstag was denied, with the opportunity to amend. Donnerstag did not amend.

Holding:

On Appeal, Donnerstag argued that the Judge erroneously denied her motion to amend her complaint finding the claims were precluded under the Workers’ Compensation Act (WCA).

The Court rejected Donnerstag’s argument that the claims pleaded against the respondent were not barred by the “Exclusive Remedy Provision” of the WCA. If an injury or death happens under the WCA, a person is not liable unless it is an intentional wrong. The substantial-certainty test determines an intentional wrong under the WCA.

The amended complaint fails to allege intentional conduct by employers. Donnerstag additionally failed to assert facts that would lead to intentional misconduct. “The single allegation in the complaint that ‘[d]efendants … willfully, negligently, and recklessly avoid[ed] repair’ was insufficient to state an intentional wrong under the WCA.”

Donnerstag additionally argued on appeal that there was no employment relationship and thus the WCA is not applicable because there is now employer-employee relationship. As this not raised in the trial court, this court does not consider this issue.

Affirmed.

 

ARISES OUT OF THE COURSE OF EMPLOYMENT

Avery v. Next Mile, LLC/DSP
Superior Court of New Jersey, Appellate Division – Unpublished Opinion

  1. A-2506-22; 2024 WL 2338101

Decided: 05/23/2024

Background:

Petitioner, Bjourn Avery worked as a delivery driver for Next Mile, LLC (Respondent), a subcontractor for Amazon. He was required to report to a parking lot where a dispatcher would give him delivery assignments for the day. On the day of the injury, the petitioner reported early and was waiting for the dispatcher. A masked individual wearing an Amazon vest appeared and shot the petitioner.

After the petitioner was released from the hospital, the petitioner left the state in fear of his life. The petitioner returned months later and was followed in a grocery store by two individuals wearing ski masks. He again left the state fearing someone was trying to kill him.

Prior to the shooting, the petitioner had argued with a former co-worker about a debt he owed the co-worker.

The WCJ found that the accident did not arise out of his employment even though it had taken place during the course and scope of his employment. The WCJ found that the petitioner had several inconsistencies in his version of events and his credibility was suspect at best. The shooting appeared to be a targeted act and could have also occurred outside the workplace. The WCJ dismissed the petitioner’s claim with prejudice for lack of compensability.

Holding:

On Appeal, the petitioner argued that the WCJ incorrectly placed the burden of proof on him to demonstrate the workplace incident was not the result of personal risk. The court disagreed. While it is true that an employer is liable to an employee for disabling injuries, which resulted from an accident arising out of and in the course of employment, a petitioner has the burden of proof to establish all elements of the case. Nothing here would cause the burden of proof to shift to the respondent.

The WCJ correctly found that there was no evidence in the record causally relating the shooting to petitioner’s employment with the respondent. Additionally, the WCJ’s credibility findings were supported by facts in the record.

Affirmed.

 

NEW JERSEY LEGISLATIVE UPDATE

Assembly Bill 3986

Revises workers’ compensation law to increase contingency attorney fee cap in contingency cases from 20 percent to 25 percent.
Last Action: May 16, 2024 – Reported out of Assembly Committee, 2nd Reading

Assembly Bill 4371/S1943

Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee

Assembly Bill 4283

Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee