(a)        Claim petitions shall be subject to the following:

1.         The claim petition may be filed electronically or on paper.

2.         Claim petitions filed on paper shall be verified by the claimant and include the date of the signature and verification. The formal hearing process shall be initiated by the filing of a verified claim petition in duplicate with the central office of the Division within the time prescribed by law on a form prescribed by the Division. Claim petitions filed electronically shall follow the procedures in (c) below. If an attorney for the petitioner knowingly files an incomplete or inaccurate petition any fee that may be awarded may be reduced by 15 percent or $200.00, whichever is greater.

3.         Except as provided in subsection (a)2 above, all paper pleadings, motions and briefs shall be signed by the attorney of record, or the attorney’s associate or by the party if pro se. Signatures of a firm may be typed, followed by the signature of an attorney of the firm. Signatures on any duplicate original or carbon copy required to be filed may be typed. Every paper to be filed shall bear the date on which it was signed.

4.         The signature of an attorney or party pro se constitutes a certification that the signatory has read the pleading or motion; that to the best of the signatory’s knowledge, information and belief there is good ground to support it.

5.         Material allegations, if known, shall be stated. Material allegations   include a description of the accident or occupational exposure, the nature of the injury, the date and place of the occurrence, the wage, compensation benefits provided to date, a description of all other claims made for this injury and all other information requested on the prescribed form.

6.         Claim petitions by or on behalf of a worker seeking compensation for injury caused by an accident shall describe the date, place and description of the accident, the injury, the name and address of the employer, the name and address of the treating provider, the name of the compensation insurer and all other pertinent information required by the Act and these rules.

7.         Claim petitions filed by dependents for benefits provided by N.J.S.A. 34:15-13 shall set forth the identity, address, relationship and date of birth of all dependents, the social security number of the decedent, the date and cause of death, whether compensation benefits were paid or claimed during the deceased’s lifetime, and the type and amount of benefits claimed. To the extent applicable, the petitioner shall comply with the information required for accidental injury claims or occupational disease claims. Multiple claims arising from one decedent shall be consolidated for disposition.

8.         All known multiple occupational claims by a worker or dependent against the same respondent employer shall be joined in one petition. Claim petitions for occupational disease as defined by N.J.S.A. 34:15-31 which are filed on behalf of a worker shall describe the dates, place and description of the exposure and the injury or illness claimed to have occurred as a result of the exposure. The occupational disease petition shall include the name and address of the employer(s) and the identity of its compensation insurer for the pertinent period of time as well as all other information required in filing a claim petition required by this section. The Division shall notify all parties of disposition.

9.         Vague or evasive pleadings may be stricken or a claim petition  dismissed without prejudice on motion brought by a party or the Judge of Compensation on notice. Claim petitions which merely describe the injury or illness by generic definition, such as orthopedic, internal, neuropsychiatric or similar terms without description of the particular injury shall be considered vague or evasive.

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Frappier v. Eastern Logistics, Inc., 400 N.J. Super. 410 (App. Div. 2008)

After being injured in a motor vehicle accident in New York, plaintiff filed claim petitions with the Division of Workers’ Compensation seeking relief pursuant to N.J.S.A. § 34:15-1 to -128, alleging that the accident occurred during and arose from his employment with Eastern Logistics, Inc. and Eastern Express, Inc. Logistics defended on the ground that plaintiff worked as an independent contractor and was not an employee covered by the Act. Acuity Insurance Co. provided a defense to Logistics, but reserved its right to disclaim coverage. After learning about the reservation rights, plaintiff’s attorney moved to join Acuity in the proceeding and estop Acuity from denying coverage. The judge of compensation denied the motion to join Acuity on the ground that Acuity was already in the case and determined that, because Acuity had provided a defense, it was estopped from denying coverage. Acuity appealed from the interlocutory order estopping it “from denying coverage for truck drivers.”

The Court of Appeals vacated the order and remanded. Because Acuity was not a party to the proceeding in the Division and the judge of compensation had not determined whether plaintiff was an employee or independent contractor at the time of the accident, it was improper for the judge of compensation to exercise the Division’s ancillary authority to address insurance coverage.

There is no question that a judge of compensation may address a coverage issue relevant to a claim for compensation within its jurisdiction. That jurisdiction is, however, ancillary to its jurisdiction over the underlying claim and requires that the “carrier [be] a named party to the compensation proceeding.” Until the issue of plaintiff’s status as an employee is resolved, there is no reason for the Division to consider the question of estoppel. The judge did not grant Frappier’s motion to join Acuity as a party to the action. Moreover, because the judge had not yet determined whether Frappier was an employee, entitled to the protection of the Act, or an independent contractor, not covered by the provisions of the Act, it was not clear that a resolution of the insurance coverage issue would be necessary to a determination of Frappier’s claim. If Frappier is not an “employee” who is entitled to workers’ compensation, the Division will have no reason to address rights under the policy of insurance issued by Acuity or any authority to enter any order against Acuity. Accordingly, we vacate the order estopping Acuity and remand for further proceedings on the claim petition.

NEW JERSEY WORK INJURY LAWYERS PONDER COURT OF APPEALS DECISION ON THE APPLICATION OF WORKERS COMPENSATION COVERAGE FOR INJURED WORKERS WHO ARE COMING TO AND GOING FROM WORK

Scott v. Foodarama Supermarkets, 398 N.J. Super. 441 (App. Div. 2008)

Scott, an undercover loss-prevention officer for Foodarama required to travel between different stores, was reimbursed for gasoline both between stores and to and from work, tolls and out-of-pocket expenses, and $200 a month for wear and tear on his car. On November 11, 2005, Scott was in an accident on his way home from work and was badly injured. He moved for temporary disability and medical benefits, which he was awarded because the judge determined that he was acting in the course of his employment at the time of the accident because he was paid by the mile. Foodarama argued the judge of workers’ compensation incorrectly applied N.J.S.A. 34:15-36 to the case because Scott was not paid wages for his travel time but only expenses and thus was not within the course of his employment traveling to and from work.

The Workers’ Compensation Act recognizes two types of employment: on-premises employment and off-premises employment. Because off-premises employees may not report to a single “premises,” the statute provides that they are to be compensated only for accidents occurring in the direct performance of their duties. What has become known as the “going and coming” rule explains that, generally, accidents occurring while an employee is traveling to and from work are not considered within the course of employment unless “the employee is engaged in the direct performance of duties assigned or directed by the employer.” The “travel-time” exception provides workers’ compensation coverage to employees who are paid for their travel time to and from distant work sites even though they may not be in the direct performance of their duties. The Appellate Division held that this exception did not apply to Scott’s case because he was not paid for his travel time. Scott was only reimbursed for his actual gasoline consumption plus tolls and wear and tear on his vehicle. While Scott was paid for his travel time between stores because he was entitled to count that time toward his minimum forty-eight hour workweek, the court was not persuaded that he was paid wages for his travel time to and from work.

January 25, 2010

NEW JERSEY WORKERS’ COMPENSATION LAWYERS REVIEW RECENT APPELLATE DIVISION CASE EXPANDING THE “COMING AND GOING” RULE TO OFF-SITE EMPLOYEES TRAVELLING ON COFFEE BREAK.

Under traditional rules of Workers’ Compensation in the State of New Jersey, an employee who is “coming and going” from the place of work is not entitled to benefits under the statute. A minor deviation, however , from employment does not render an employee ineligible. In a recent case, the Appellate Division of the Superior Court of New Jersey held that accidents occurring during coffee breaks for off-site employees are minor deviations from employment and therefore the employee is entitled to recover full benefits. The employee in the case was severely injured while on a five male trip to a deli for coffee. The Court determined that was properly taking a coffee break as the employee waited to consult with an expert to finish with other business as directed by the employer. As such, an employee is in the course of employment when performing his or her prescribed duties at the time of the injury.

Legal Quote of the Week:

I see that the State in which the law is above the rules…has salvation.

Plato, 428-c.348 b.c., Laws

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