A Capehart Scatchard Blog

Key Defenses

Award Affirmed For Mechanic With Longstanding Back Problem Found To Have Been Worsened By Twisting Motion

By on March 28, 2013 in Key Defenses with 0 Comments

Edward Kovalcik worked as a maintenance mechanic at Capital Health-Fuld.  He was injured in February 2011 while repairing a door.  He said that he twisted to pick up a screw and injured his low back.  Dr. Lee Buono, a neurosurgeon at the hospital, came to the scene of the injury and observed Kovalcik writhing in […]

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Owner of Construction Company Was Covered When He Fell and Became Paralyzed While Doing Work on His Own Home

By on December 14, 2012 in Key Defenses with 0 Comments

Daniel Cordeiro owned Danny’s Construction Company, which did masonry and concrete work.  The company employed eight or nine employees.  Cordeiro purchased an investment property in Asbury Park, New Jersey.  He listed Danny’s as the repair and renovation general contractor on the construction permits.  As general contractor, Danny’s hired plumbing and electrical subcontractors and paid the […]

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Town Wins Workers’ Comp Case by Proving Employee Engaged in Fraud in not Revealing Prior Medical Condition

By on July 12, 2012 in Key Defenses with 0 Comments

The Judge of Compensation and Appellate Division found that the employee was entitled to no benefits based on his violation of the New Jersey Fraud Act In Johnnie Jackson v. Township of Montclair, A-2212-11T2 (App. Div. July 5, 2012), the claimant injured his knee while moving large boxes of books at the Montclair Public Library on […]

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No Legal Malpractice Where Plaintiff Did Not See Comp Attorney Until Two Years After She Knew of Her Stress Condition and Relationship to Work

By on June 18, 2012 in Key Defenses with 0 Comments

New Jersey has a statute of limitations for both traumatic and occupational disease claims.  In Millar v. Darren J. Del Sardo, Esq. A-4388-10T1 (App. Div. April 27, 2012), both statutes of limitations came into play. Plaintiff Cynthia Millar began working for Cablevision in 1997 as an account executive.  She began treating with a psychologist for […]

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Appellate Court Finds Petitioner to be a Casual Employee

By on June 1, 2012 in Key Defenses with 0 Comments

The casual employee defense remains viable in New Jersey.  It is a difficult defense to make in certain lines of employment such as trucking, real estate agents, newspaper delivery persons and cab drivers, but it remains viable in situations involving home remodeling and home additions. A good illustration is the recent case of Cruz v. […]

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Dyslexia and Learning Disability Do Not Provide Exemption From Two-Year Statute of Limitations

By on May 7, 2012 in Key Defenses with 0 Comments

The statute of limitations is jurisdictional and nothing, other than perhaps insanity, relieves a claimant from the rule All states have statutes of limitations for filing compensation claims.  But are these statutes flexible under certain circumstance? The answer in New Jersey is emphatically no. In Zito v. AIC, A-1070-10T2 (App. Div. September 26, 2011), petitioner began […]

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Two Year Statute Of Limitations Runs From Last Date Of Comp Payments And Cannot Be Relaxed By Court

By on February 14, 2012 in Key Defenses with 1 Comment

Many states have a provision that allows an employee to file a workers’ compensation claim within two years from the last payment of workers’ compensation benefits.  But is this statute absolute? Kirsten Toth was injured on July 23, 2004 working for Princeton Health Care.  She struck her head on her car door while bending to […]

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Appellate Court Dismisses Workers’ Comp Claim For Fraud Where Petitioner Misrepresented Facts During Trial

By on February 5, 2012 in Key Defenses with 0 Comments

The New Jersey Division of Workers’ Compensation has its own fraud act within the workers’ compensation law.  The case of Dubrel v. Maple Crest Auto Group, A-3321-10T3 (App. Div. January 30, 2012) illustrates how this law can be invoked where a claimant misrepresents the limitations of his ability to function. The petitioner slipped and fell […]

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Can An Employer Defeat An Asbestos-Related Cancer Claim Based On The Statute Of Limitations?

By on December 5, 2011 in Key Defenses with 0 Comments

The answer to this question, at least in New Jersey, is a resounding yes, if you have the right facts.  In Russo v. Hoboken Board of Education, A-1861-10T4 (App. Div. November 29, 2011), the petitioner filed a claim petition on February 24, 2004.  He alleged that pulmonary injuries caused by asbestos exposure principally between 1990 […]

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Once Per Week Hairstylist Found To Be Employee And Not Independent Contractor At Senior Facility

By on November 6, 2011 in Key Defenses with 3 Comments

In New Jersey employment is favored heavily over independent contractor status.  Proof of this rule is Johantgen v. Brandywine Senior Care Center, A-4883-09T1 (App. Div. October 31, 2011). Diane Johantgen provided hairstyling and grooming services once per week to residents of a long-term nursing home.  She fell from a chair and fractured her wrist while […]

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Appellate Division Holds That Division Of Workers’ Compensation Has Jurisdiction To Decide Coverage Issue

By on August 23, 2011 in Key Defenses with 0 Comments

Robert Tutelais a member of Earthworks Limited Liability Company and also one of its employees.  Earthworks is in the business of landscape construction.  In 2008 Earthworks through Tutela filed an application with Sentinel Insurance Company for workers’ compensation coverage.  Representations were made that Earthworks hired independent contractors to perform tree work and that all of […]

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Appellate Division Holds Truck Driver Sleeping On Dana Transport Property Was An Employee And Cannot Sue Dana Transport In Civil Action

By on July 8, 2011 in Key Defenses with 0 Comments

The independent contractor defense in New Jersey is not generally a strong defense, but it can be sometimes advantageous to employers to invoke it when they are sued civilly.  The case of Fugatt v. Dennison Graine and Dana Transport, Inc., A-5353-09T3 (App. Div. July 5, 2011) presents a fascinating situation where the injured worker did […]

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Independent Contractor – Re/Max v. Wausau Ins. Cos.

By on July 7, 2008 in Key Defenses with 0 Comments

The independent contractor test was thoroughly analyzed by the Supreme Court in Re/Max v. Wausau Ins. Cos., 162 N.J. 282 (2000). In that case Re/Max argued that all of its real estate agents were independent contractors. They signed agreements to that effect. While most of the real estate agents worked full time, they did not have […]

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Independent Contractor – Kertesz v. Korsh

By on July 7, 2008 in Key Defenses with 0 Comments

To establish that an employee is an independent contractor the employer must consider the two tests used in New Jersey. The case of Kertesz v. Korsh, 296 N.J. Super. 146 (App. Div. 1996) provides an illustration. In this case the petitioner, Michael Kertesz, was a skilled contractor who did sheet rocking for 30 years. He had […]

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Fraud case – Cardiello v. Community Medical Center

By on July 1, 2008 in Key Defenses with 0 Comments

In a case handled successfully on appeal by Anne Hammill, Esq. of Capehart Scatchard,  the Appellate Division vacated a 60% award to petitioner in Cardiello v. Community Medical Center, A-3172-06T1 (App. Div. March 19, 2008). Petitioner, Valerie Cardiello, alleged that she injured her back on December 30, 2001 while working for respondent.  She later amended […]

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