A Capehart Scatchard Blog

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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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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Fraud case – Singh v. Cream-O-Land Dairy

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

New Jersey has its own fraud provision built into the statute under N.J.S.A. 34:15-57.4.  There are two helpful unreported cases on fraud. In Singh v. Cream-O-Land Dairy, A-2468-06T5, (App. Div. March 27, 2008), the Appellate Division affirmed the decision of the Honorable Michael P. Mullen, Judge of Compensation, in denying compensation to a claimant who […]

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Casual employment – Martin v. Pollard

By on July 1, 2008 in Key Defenses with 1 Comment

Casual employees are excluded from receiving benefits under N.J.S.A. 34:15-36. The present definition of casual employment embraces two concepts, depending on whether the services are given in relation to a business, or whether they are unconnected to a business. If the services are rendered in relation to a business, they are casual if they are […]

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