A Capehart Scatchard Blog

Court Validates Firing of City Worker While on Alternative Duty for Work-Related Injury

By on December 7, 2016 in ADA with 0 Comments

Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011.  He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas.  He took FMLA leave and then placed in the City Return to Work Program, which was designed to help […]

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Hospital Defeats Occupational Claim By Filing Motion To Dismiss After Petitioner’s Case

Diana Vernacchia worked as a housekeeper for Warren Hospital performing vacuuming and cleaning duties in the radiology department and hallways, dusting and cleaning the x-ray machines and diagnostic devices, and lifting and discarding biohazardous waste and linen bags weighing an average of 50 pounds each.  She filed an occupational disease claim alleging that she developed […]

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Supervisor’s Testimony Rebuts Written Job Description on 35 Pound Lifting Requirement Being Essential Job Function

By on November 23, 2016 in ADA with 0 Comments

Kenneth Camp worked for 38 years for Bi-Lo, LLC., a grocery store in Tennessee, as a stock clerk.  He worked with two others stocking the grocery with product each night.  In March 2012 the Store Director, Mr. Gilreath, arrived at the store and noted that the three stock-shift clerks had not finished shelving all the […]

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Employer Loses Intoxication Defense Where Blood Alcohol Level of Claimant Was .173 Percent

By on November 14, 2016 in Compensability with 0 Comments

One of the most anachronistic aspects of New Jersey workers’ compensation law is that employers pay workers’ compensation benefits even when intoxication is a substantial cause of injury.  In Diaz v. National Retail Transportation, Inc., A-3927-14T2 (App. Div. November 9, 2016), Antonio Diaz was injured moving a heavy lift which fell over on him.  He […]

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CMS May Soon Adopt New And More Strict Guidelines On Approving Zero Allocation Medicare Set Asides

By on October 31, 2016 in Medicare with 0 Comments

A number of prominent Medicare experts disseminated Legal Alerts last week to the effect that changes may be occurring with respect to the requirements for CMS to approve zero allocations.  These changes would spell bad news in New Jersey for employers who want to settle disputed cases on a Section 20 basis.  According to Martin […]

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Director Wojtenko Issues Memo to All Attorneys on Strict Compliance with the Rules on Motions for Medical and Temporary Disability Benefits

By on October 27, 2016 in Policy with 0 Comments

The Honorable Russell Wojtenko, Jr., Director and Chief Judge, issued a Memo effective October 21, 2016 to all workers’ compensation attorneys advising that the administrative rules on motions for medical and temporary disability benefits will be strictly enforced.  What this means to employers, carriers, third party administrators and practitioners is that motions for medical and […]

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Partial Responsibility for Parking Lot by Employer Results in Compensable Claim

By on October 26, 2016 in Compensability with 0 Comments

In Giordano v. High Point Insurance Company, No. A-4971-14T3 (App. Div. October 11, 2016), Michelle Giordano, an employee of High Point Insurance Company, was injured in a parking lot adjacent to a multi-tenant office building.  After parking in the lot, she fell on twigs and debris, injuring her right shoulder.  Her employer denied the claim based […]

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Lyme Disease Qualifies As A Disability Under The New Jersey Law Against Discrimination

By on October 19, 2016 in ADA with 0 Comments

In Cook v. Gregory Press, Inc., 2016 N.J. Super. Unpub. LEXIS 1885 (App. Div. August 11, 2016), the Appellate Division reversed a trial court’s dismissal of a plaintiff’s disability discrimination case involving an employee eventually diagnosed with Lyme disease.  The case involved Matthew Cook, who worked as a printing machine operator since 2002.  In 2011, […]

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The Evolution of the Reconstructed Wage Rule in New Jersey

By on October 12, 2016 in Awards with 0 Comments

What is a reconstructed work week and wage and why does it matter?  Originally, this referred to a principle by which certain injured employees can seek recalculation of their work week, thereby increasing their wage and permanency rate at the time of settlement.  For example, an employee works 20 hours per week earning $20 per […]

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OSHA Attacks Employer Post-Accident Drug Testing Policies

By on October 5, 2016 in Policy, Uncategorized with 0 Comments

Many employers have a policy of mandatory post-injury drug testing.  Those policies must now be reconsidered and largely jettisoned. The underpinning of the new OSHA policy on drug testing is the belief that blanket post-injury drug testing policies deter proper reporting of injuries.  On May 12, 2016 OSHA published new final rules against discrimination and […]

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Managed Healthcare Services Company Prevails In Nurse’s ADA Claim

By on September 27, 2016 in ADA with 1 Comment

Katherina Swank worked for CareSource Management Group (hereinafter CareSource) as a Registered Nurse (RN).  CareSource provides managed healthcare services to Medicaid recipients.  Her work involved case manager duties by telephone until CareSource initiated a new approach in 2011 to delivering managed care services to the Ohio Department of Job and Family Services, which mandated that […]

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Understanding George v. Great Eastern Food Products

By on September 20, 2016 in Compensability with 0 Comments

The case that generates more questions than any other in this practitioner’s experience is George v. Great Eastern Food Products, Inc., 44 N.J. 44 (1965) regarding idiopathic claims.  This case comes into play any time that an employee falls for reasons unknown and suffers an injury caused by the fall itself.  Countless employers have had […]

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Convent Found To Be Employer of Cook and Required To Reimburse Diocese for Medical and Temporary Disability Payments Voluntarily Paid by Diocese

By on September 15, 2016 in Compensability, Counsel Fees with 0 Comments

Consider this situation:  Company A voluntarily pays approximately $172,000 in medical and temporary disability benefits to Worker.  Company A demands reimbursement from Company B believing that Company B is the true employer.  Worker never files a claim petition against Company A or B.  Can Company A file a claim petition in the name of Worker […]

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Appellate Court Rules Employer Has Subrogation Rights in Three Key Cases

By on September 7, 2016 in Court Rulings with 0 Comments

Three cases were heard together in the New Jersey Appellate Division regarding the right of employers to obtain reimbursement under N.J.S.A. 34:15-40 in situations involving car accidents where medical treatment was potentially recoverable under PIP.  The cases are Lambert v. Travelers Indemnity Company of America, Reed v. Qual-Lynx and Township of Marlboro, and Agar v. […]

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EEOC Guidelines on Unpaid Leave Complicate Matters for Employers

By on August 30, 2016 in EEOC with 0 Comments

The new EEOC Guidance issued on May 9, 2016 upsets many of the assumptions employers routinely make in regard to leaves of absence.  The EEOC states, “An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not […]

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