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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN NEW JERSEY WORKERS’ COMPENSATION IN 2021

What’s Hot in Workers’ Compensation, Vol. 24, No. 12, December 2021

December 1, 2021

by Kiara K. Hartwell

1.    The Appellate Division affirmed a Judge of Compensation’s decision to include the petitioner’s portion of attorneys’ fees and costs in the employer’s Section 40 lien.
Panckeri v. Allentown Police Dep’t, Docket No. A-2015-19 (Appellate Division, Decided Mar. 2, 2021)

In this per curiam decision, the Appellate Division enforced a statutory lien, agreeing with the Judge of Compensation that the petitioner’s share of costs and fees should be included as a part of the subrogation calculation. In affirming the judge’s decision, the Appellate Division heavily relied on the judge’s reasons and only added that the petitioner’s reliance on Kuhnel v. CNA Insurance Cos., 322 N.J. Super. 568 (App. Div. 1999) was misplaced, as the petitioner’s share of fees and costs was not addressed Kuhnel was decided eight years prior to the 2007 amendment of Section 40, in which there was no mention of a petitioner’s portion of fees and costs.

2.    The New Jersey Supreme Court addressed medical marijuana in workers’ compensation cases.
Hager v. M&K Constr., 246 N.J., 1247 A.3d 864 (2021)

The New Jersey Supreme Court affirmed both the workers’ compensation court’s order and the Appellate Division’s to order a respondent to reimburse a petitioner’s medical marijuana costs. First, the Supreme Court found the employer did not qualify as “a government medical assistance program or private health insurer” under the Compassionate Use Act and N.J.S.A. 24:6I-14 and that medical marijuana was a reasonable and necessary treatment. Finally, the Supreme Court noted the employer was not aiding and abetting the petitioner’s possession of marijuana by reimbursing medical marijuana costs.

3.    The Appellate Division affirmed dismissal of a workers’ compensation case based on the premises rule.
Pilone v. Cnty. of Middlesex, Docket No. A-1676-19, (Appellate Division, Decided Mar. 15, 2021)

The Appellate Division agreed with the judge’s decision that the petitioner’s injury was not compensable as it did not arise out of and in the course of employment. In reiterating that the premises rule limits an employer’s liability to locations that the employer controls, such as by ownership, maintenance or exclusive use, the Appellate Division noted the respondent had no control over the sidewalk where the petitioner fell. In addition, the Appellate Division pointed out the petitioner failed to prove the respondent directed her to have her meeting in the donut shop. 

4.    The Appellate Division affirmed a judge’s finding of causal relationship between the work accident and need for treatment after weighing expert opinions.
Soto v. Exclusive Coachworks, Inc., Docket No. A-2331-19, (Appellate Division, Decided Apr. 12, 2021)

In affirming a judge’s order to provide benefits, the Appellate Division noted the judge, as the trier of fact, was in the best position to weigh the credibility of experts and the decision was well-supported by the record. In this case, both experts agreed the petitioner needed a total knee replacement; that as a result of the 2017 incident, he required arthroscopic surgery, at a minimum; and his underlying arthritis was exacerbated by the 2017 incident. 

5.    The Appellate Division affirmed a workers’ compensation judge’s decision to dismiss as the injury was not in the course of employment.
Regalado v. F&B Garage Door, Docket No. A-0083-20 (Appellate Division, Decided Jun. 8, 2021)

The Appellate Division affirmed a Workers’ Compensation Judge’s decision to dismiss a petitioner’s claim as a result of a car accident after an employer’s annual holiday party. The Appellate Division reviewed Lozano v. Frank DeLuca Constr., 178 N.J. 513 (2004), noting that an employee’s subjective impression of compulsion alone was insufficient. Rather, other factors needed to be taken into account, such as the employer’s solicitation of employee participation, when/where/whom the event takes place, and whether refusal could negatively impact the employee’s employment. 

6.    The Appellate Division affirmed a workers’ compensation court order to deny additional medical and temporary benefits to a petitioner.
Constanzo v. Meridian Rehab, Docket No. A-5547-18 (Appellate Division, Decided Jun. 17, 2021)

The Appellate Division agreed with the judge, who heard testimony and found the petitioner failed to establish a causal relationship between the original injury and current left knee condition. There was ample evidence to support that the current left knee condition was not related to the April 2016 incident and the judge did not err in giving greater weight to Dr. Sieler’s testimony, as judges are in the best position to assess credibility, and giving more weight to one expert’s opinion is not a basis to reverse a judgment.

7.    The Appellate Division affirmed the workers’ compensation court decisions, noting petitioners were not entitled to redetermination of benefits.
Published Consolidated Appeals (Appellate Division, Decided Jun. 21, 2021): Wilhelm v. Ryder Logistics & Transp. Sols. & Second Injury Fund, Docket No. A-3770-18; Bozarth, Sr. v Burlington Cnty. & Second Injury Fund, Docket No. A-3792-18; Schiazza v. Western Oilfield Supply & Second Injury Fund, No. A-3797-18; and Pierce, Jr. v. CBF Trucking & Second Injury Fund, Docket No. A-3798-18

The Appellate Division agreed with the Judge of Compensation that N.J.S.A. 34:15-95.5 did not compel a triennial redetermination of Average Current Earnings (ACE) nor was it mentioned. As an issue of first impression, the Appellate Division noted that New Jersey was a reverse offset state, in which the workers’ compensation award was reduced rather than Social Security Disability. In addition, the Appellate Division noted the plain language does not include same and there was no mention in the legislative history. It was also indicated that 42 U.S.C. § 424a(d) created an exception for reverse offset states. As such, the Appellate Division found the triennial redetermination of Average Current Earnings (ACE) was not applicable in New Jersey as a reverse offset state.

8.    The Appellate Division affirmed grant of summary judgment for plaintiffs’ failure to establish intentional wrong.
Estate of Portillo v. Bednar Landscaping Serv., Inc., et al. and Estate of Zelaya v. Bednar Landscaping Serv., Inc., et al., Docket No. A-3110-19 (Appellate Division, Decided Jul. 8, 2021)

In affirming the Law Division’s grant of summary judgment, the Appellate Division found the plaintiffs were collecting workers’ compensation benefits and the defendants did not commit an “intentional wrong.” After reviewing relevant case law, the Appellate Division found that, unlike some of the prior cases, the defendants here had no prior OSHA citations and were not aware of OSHA’s safety regulations for trenches. In addition, the plaintiffs could not show the defendants had knowledge regarding the unsafe trench practice and substantial certainty of the collapse. Judge Sabatino joined in the majority’s decision to affirm summary judgment, but added in his concurring opinion his thoughts on the troubling inconsistency between the defendants’ lack of knowledge assertions in the civil case and Bednar Landscape’s plea of guilty to a criminal accusation of violating a known legal duty to take precautionary safety measures. 

9.    The Appellate Court affirmed dismissal of claim for petitioner’s failure to demonstrate injury was in course and scope of employment.
Mackoff v. New Brunswick Saw Serv., Docket No. A-3625-19 (Appellate Division, Decided Jul. 14, 2021)

The Appellate Division agreed with the judge in denying the petitioner’s motion and dismissing the claim. In doing so, the Appellate Division reviewed Jumpp v. City of Ventnor, 177 N.J. 470 (2003), in which the Supreme Court found that compensability for employees who work away from the office should be based on whether the employee was performing job duties at time of the injury. Because the petitioner admitted that the Inn was two hours out of his way, rather than going directly to his office from the meeting location; the Inn was never a customer; and he had no other appointments with customers, the Appellate Division declined to disturb the judge’s findings. 

10.    The Appellate Court reversed dismissal of workers’ compensation claim under premises rule.
Walker v. Saker ShopRite, Docket No. A-2770-19 (Appellate Division, Decided Sep. 7, 2021)

The Appellate Division reversed the Workers’ Compensation Judge’s dismissal of a claim based on the conclusion that the accident did not take place in the course of the petitioner’s employment. In revising the premises rule, the Appellate Division found the petitioner’s incident occurred in an area controlled by Saker. The Appellate Division further explained that “it is well-established in workers’ compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right.” 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.