A Capehart Scatchard Blog

Employee’s Failure to Respond To Request for More Information Regarding Leave Request Doomed FMLA Claim

By on July 25, 2011 in FMLA with 1 Comment

Robert Righi worked as a sales rep for SMC Corporation of America.  On several occasions Righi would request vacation time to care for his mother.  He would email his manager, Louis  King, for prior approval.  The company policy was to require employees to obtain prior approval from a supervisor before taking leave. The policy further provided […]

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Federal Court Holds That Employee With Renal Cancer In Remission Is Covered Under The ADA

By on July 18, 2011 in ADA with 0 Comments

Michael Norton worked for defendant ALC in May 2008.  The company operated 200 facilities in twenty states involving assisted living services to the elderly.  Plaintiff worked at the Sulphur Springs, Texas location as a “Residence Sales Manager.” Norton was diagnosed with renal cancer in April 2009.  He went on medical leave and underwent surgery on […]

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Disclosure By Employer Of Medical Information That Was Voluntarily Offered By Employee Does Not Violate ADA

By on July 11, 2011 in ADA with 4 Comments

Many employers struggle with situations that develop when an employee voluntarily reveals certain confidential medical information.  In Watson v. C.R. England, Inc., 2011 U.S. App. LEXIS 8971, (10th Cir. 2011), the plaintiff worked as a truck driver for C.R. England.  In the course of his employment, he informed C.R. England’s Human Resources Director that he […]

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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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Light Duty – Harbatuk v. S&S Furniture Systems Insulation

By on July 7, 2011 in Compensability with 0 Comments

In addition to terminating temporary disability benefits on maximal medical improvement, an employer can terminate such benefits when the employee can return to work light or modified duty under Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986). The basic rule which emerges from Harbatuk is this:  the employer has […]

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Intentional Harm – Millison v. E.I. duPont deNemours & Co.

By on July 7, 2011 in Compensability with 0 Comments

In New Jersey it is very difficult to get past the exclusive remedy provision.  The leading case on proving an intentional harm claim sufficient to get beyond the exclusive remedy is Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161 (1985) in which plaintiffs had shown intentional wrong by respondent in deliberately concealing […]

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Heart Case – Hellwig v. J.F. Rast & Co., Inc.

By on July 7, 2011 in Uncategorized with 0 Comments

In a traumatic heart claim, New Jersey requires a comparison between work and non-work effort. The Central Issue Is:  Does A Claimant Have To Prove That The Work Effort Was Greater Than Both What He Usually Did At Work And What He Did Outside Of Work? The answer came in one of the most important […]

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One Strike You’re Out, Says The Ninth Circuit

By on June 28, 2011 in ADA with 0 Comments

The Pacific Maritime Association had a “one-strike” rule which screened out any applicant who tested positive for drug or alcohol use during the preemployment process.  Santiago Lopez, who was addicted to drugs and alcohol, tested positive for marijuana during his preemployment process in 1997 and was therefore disqualified from further consideration. In 2002 Lopez began […]

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Pulmonary/Respiratory – Laffey v. City of Jersey City

By on July 7, 2008 in Claims with 0 Comments

In one of the most important decisions since the 1979 amendments, the Appellate Division reversed in Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996) an award of 35% permanent partial disability for a Jersey City police officer who testified that his breathing was worsened by constant exposure to dusts, fumes, […]

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Permanency Standard of Proof – Perez I, II and III

By on July 7, 2008 in Uncategorized with 0 Comments

It is an uncanny coincidence that three of the most important post-1980 cases dealing with the quality of proofs for permanent disability all begin with the name of Perez. Thus, these three claimants, all unrelated presumably, have left their mark on New Jersey law as Perez I, II, and III. Perhaps the most important case […]

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Occupational Stress – Stroka v. United Airlines

By on July 7, 2008 in Claims with 0 Comments

When an employee’s worrying is not based on events which actually took place involving the employee but only on what might have happened to the employee, that kind of worrying has been found not compensable. An example is the case of Stroka v. United Airlines, 364 N.J. Super. 333 (App. Div. 2003), certif. denied, 179 […]

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Occupational Stress – Goyden v. State Judiciary

By on July 7, 2008 in Claims with 0 Comments

The most important occupational stress psychiatric opinion is Goyden v. State Judiciary, 256 N.J. Super. 438 (App. Div. 1991), aff’d, 128 N.J. 54 (1992). Goyden was the first significant post-1980 case construing Section 31. It involved a claim by the supervisor of records in the office of the Clerk of the Supreme Court, who was adjudged […]

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Liens and Subrogation – Kuhnel v. CNA Ins. Cos.

By on July 7, 2008 in Controlling Costs with 0 Comments

In Kuhnel v. CNA Ins. Cos., 322 N.J. Super. 568 (App. Div. 1999), certif. denied, 163 N.J. 12, cert. denied, 531 U.S. 819 (2000) the Appellate Division held that a lien under N.J.S.A. 34:15-40 shall not include expenses for rehabilitation nursing services as a medical cost unless respondent can prove that the services primarily benefited […]

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Liens and Subrogation – Errickson v. Supermarkets General Corp.

By on July 7, 2008 in Controlling Costs with 0 Comments

New Jersey has a powerful subrogation provision under N.J.S.A. 34:15-40.  Respondent is entitled to two thirds of its payment if the recovery exceeds the total workers’ compensation expenses.  The employer must properly reserve lien rights. The case of Errickson v. Supermarkets General Corp., 246 N.J. Super. 457 (App. Div. 1991) points out how failure to […]

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Intentional Harm – Laidlow v. Hariton Machinery Co., Inc.

By on July 7, 2008 in Compensability with 0 Comments

Until 2002, the standard employed to decide whether conduct constituted intentional harm was so rigid that it basically amounted to proving that an employer created a virtual certainty of harm. Then came a series of decisions from the New Jersey Supreme Court which opened up the exclusive remedy provision. One of the leading cases is Laidlow […]

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