TOMS RIVER LAW BLOG by Silvi, Fedele & Honschke

New Jersey Workers' Compensation Fraud Holding

2012-02-06T06:44:00.000-08:00

In Dubrel v. Maple Crest Auto Group, A-3321-10T3 (App. Div. January 30, 2012), the New Jersey Appellate Divison found that the petitioner violated the New Jersey Workers' Compensation Fraud Statute when he misrepresented his physical abilities on direct examination.

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NEW JERSEY WORKERS' COMPENSATION DISCOVERY ISSUES COMMITTEE

2011-12-22T13:12:00.000-08:00

Due to concerns raised by both petitioner and respondent attorneys regarding the New Jersey workers' compensation discovery process, a committee has been formed to address these issues.

http://lwd.dol.state.nj.us/labor/forms_pdfs/wc/pdf/Discovery_112811.pdf

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Worker's Compensation Administrative Supervisory Judge Virginia Dietrich recently issued an opinion concerning medical payment issues

2011-09-30T07:08:00.000-07:00

Burn Surgeons of St Barnabas v. Shop Rite

http://lwd.dol.state.nj.us/labor/forms_pdfs/wc/pdf/Burn.pdf

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New Jersey Puts Toughest Anti-Bullying Law In The Country Into Effect

2011-09-07T10:27:00.000-07:00

Anti-Bullying Bill of Rights

http://www.njleg.state.nj.us/2010/Bills/AL10/122_.PDF

New Jersey Supreme Court Releases Amendments To The Rules Of Court

2011-08-01T18:01:00.000-07:00

The Supreme Court has adopted rule amendments based on the recommendations contained in the previously published 2009-2011 reports of several of its rules committees. These rule amendments are effective September 1, 2011.
http://www.judiciary.state.nj.us/notices/2011/n110729b.pdf

New Jersey Workers' Compensation Centennial Gala Photos

2011-07-08T09:30:00.000-07:00

http://lwd.dol.state.nj.us/labor/wc/content/centennial_pic1.html

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New Jersey Workers' Compensation Centennial

2011-06-07T11:06:00.000-07:00

New Jersey, one of twelve states to enact the first workers' compensation statutes in the country, is celebrating the 100th Anniversary of the New Jersey Workers' Compensation program.

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NEW EVIDENCE PROCEDURE IN DRUG PROSECUTIONS

2011-05-26T09:11:00.000-07:00

State v. Heisler

New Jersey Appellate Division has established a new procedure in drug prosecutions for both the Municipal and Superior courts. The Court construed NJSA 2C:35-19 to require, at least 20-days before trial, the prosecution must put the defense on notice of its intent to use documentary evidence from a forensic laboratory to prove the composition of the drugs that are the subject of the prosecution. Under this new procedure, the 10-day period to file an objection by the defense does not begin to run until the defendant has been served by the prosecutor with both a notice of intent to offer and the lab results. The failure of the State to follow this procedure will result in a bar at trial to the admission of the documentary drug evidence.

New Jersey Appellate Division Holds That There Are Differences Between DWI Refusal and CDL Refusal

2011-05-05T11:08:00.000-07:00

State v. Nunnally A-6031-09T1

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New Jersey Supreme Court Ruling On Criminal Suppression of Evidence

2011-04-26T10:29:00.000-07:00

STATE V HANDY (A-108-09)

The Court held that incorrect information provided by a police dispatcher to the police must result in a suppression of evidence.

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New Jersey Appellate Division Ruling On Criminal Search Issue

2011-04-13T12:42:00.000-07:00

Stae v. Witczak

DOCKET NO. A-2735-10T2

The community caretaking exception to the warrant requirement for search and seizure applies to residential properties.

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New Jersey Appellate Division Opinion On DWI/DUI

2011-04-05T10:54:00.000-07:00

Sate v. Holland

The court held that a temperature probe that is "substantially similar"to the Ertco-Hart probe generally used in Alcotest machines is acceptable.

NEW JERSEY SUPREME COURT ON DUI/DWI/REFUSAL

2011-03-27T18:22:00.000-07:00

"In this case, it is undisputed that defendant does not
speak English. As a result, Officer Lugo’s reading of the
standard statement to him in English failed to “inform”
defendant of the consequences of refusal, as required. We
therefore reverse defendant’s refusal conviction."

State v. Marquez

Ocean & Monmouth County Tax Appeals Interview

2011-03-23T10:14:00.000-07:00

Silvio M. Silvi, Esq. was interviewed and quoted regarding the current market trend toward tax appeals, in Sunday's 3/21/2011 Asbury Park Press Front page Article regarding Tax Appeals. For the complete story go to:

http://www.app.com/article/20110320/NJNEWS/103190331/-1/7daysarchives/Tax-assessment-appeals-on-rise

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2011 SCHEDULE OF DISABILITES NEW JERSEY WORKERS COMPENSATION

2011-03-21T11:23:00.000-07:00

http://lwd.dol.state.nj.us/labor/forms_pdfs/wc/pdf/2011_schedule.pdf

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FAME (Fabulous Achievement in Marketing Excellence) Award

2011-03-14T13:21:00.001-07:00

Toms River Pr1ma Corporation, a New Jersey builder of Luxury residential single family homes, was recently awarded the FAME (Fabulous Achievement in Marketing Excellence) Award. Many members of the Jersey Shore Building industry attended the event at a gala dinner at Clarks Landing, Point Pleasant. Pr1ma Corp. received awards in Sales Achievement, Landscaping, and Brochure Categories, as well as winning Best Community, for their Whitty Pines Development of Toms River.

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New Jersey Jurisdictional Issue in Worker's Compensation Claim

2011-03-02T09:02:00.000-08:00

International Schools Services, Inc. v. NJ Dept. of Labor & Workforce Dev.
408 N.J. Super. 198 (App. Div. 2009)
Decided July 10, 2009
The New Jersey Appellate Division reversed and remanded the declaratory judgment of the Superior Court judge who held that the petitioner must obtain workers’ compensation insurance coverage for its overseas employees despite the fact that they work entirely overseas and never work in New Jersey. The Appellate court directed the trial court to expand the factual record and apply a Connolly/Larson analysis to determine whether the overseas employees had sufficient contacts with New Jersey to justify application of New Jersey’s workers’ compensation coverage laws.

Stancil vs. ACE USA

2011-02-10T15:09:00.000-08:00

After exhausting administrative remedies in the compensation court, the petitioner filed a complaint in the Superior Court seeking damages for a carrier’s willful noncompliance with an order of the workers’ compensation court. The Law Division judge, however, dismissed that complaint for failure to state a claim upon which relief can be granted. Afterward, the Appellate Division affirmed, holding that the remedies currently contained in the Workers’ Compensation Act and related Division regulations constitute the exclusive remedy available to an aggrieved petitioner arising out of willful noncompliance by an employer or its insurer with an order of the compensation court.

http://lwd.dol.state.nj.us/labor/wc/legal/cases/jurisdiction.html#Stancil

Summary of Real Estate Housing Market Conditions

2011-01-27T12:49:00.000-08:00

The following Summary of the Real Estate housing market conditions and activities was obtained from the US Dept. of Housing and Urban Development's Website on 1/25/2011. The report provides an overview of economic and housing market trends within each region of HUD management.

The New York/New Jersey HUD Region II, as pertains to Real Estate, provided that “Conditions in most sales housing markets in the New York/New Jersey region are improving but remain slightly soft because of weak economic conditions. According to the National Association of Realtors, home sales in the region during the second quarter of 2010, increased by 80,000 homes, or 22 percent, from a year earlier to a seasonally adjusted annual rate of 434,900 homes sold. ...In New Jersey, home sales markets are slightly soft. Home sales have recently increased, a trend that began in December 2009, but home prices remain relatively flat in most areas....The median sales price in New Jersey remained nearly unchanged at $306,600 during the 12 months ending June 2010. All three regions of the state reported increased home sales and slightly higher home prices. For the 12 months ending June 2010, Southern New Jersey home sales rose 17 percent to 32,700 homes, and the median price increased nearly 4 percent to $208,900. In Northern New Jersey, existing single-family home sales were up 24 percent to 61,500 homes, and the median price increased 1 percent to $374,400. Existing single-family homes sales in Central New Jersey increased 26 percent to 33,600 and the median price increased 1 percent to $314,300......During the 12 months ending September 2010 , increased home sales in the New York/New Jersey region contributed to an increase in single-family home building activity, and multifamily construction began to show signs of improvement compared with the activity during the same period a year earlier...”

Prior Refusals DO NOT Enhance Subsequent DWI

2011-01-19T13:07:00.000-08:00

Held by New Jersey Supreme Court in State v. Ciancaglini, prior convictions for refusing to submit to breath test does not enhance subsequent driving while intoxicated.

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U.S. Bancorp and Wells Fargo & Co. Lose Foreclosure Case

2011-01-07T14:18:00.000-08:00

U.S. Bancorp and Wells Fargo & Co. lost a foreclosure case in Massachusetts’s highest court that will guide lower courts in that state and may influence others in the clash between bank practices and state real-estate law. The ruling drove down bank stocks.

The state Supreme Judicial Court today upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages, which he said were transferred into two mortgage-backed trusts without the recipients’ being named.

Joshua Rosner, an analyst at the New York-based research firm Graham Fisher & Co., called the decision “a landmark ruling” showing that at least in Massachusetts a mortgage “must name the assignee to be valid.”

“This is likely to open the floodgates to more suits in Massachusetts and strengthens cases in other states,” Rosner said.

“We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph D. Gants wrote for a unanimous court.

Wells Fargo, the fourth-largest U.S. lender by assets, fell 96 cents, or 3 percent, to $31.19 at 2:43 p.m. in New York Stock Exchange composite trading. U.S. Bancorp, the fifth-largest U.S. bank by deposits, declined 25 cents, or 1 percent, to $26.04.

Source: Bloomberg News 1/7/2011

HAPPY NEW YEAR!

2011-01-01T08:47:00.000-08:00

From all of us at Silvi, Fedele & Honschke Attorneys At Law, have a Happy, Healthy and Safe 2011!

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Temporary Disability Benefits New Jersey Workers' Compensation

2010-12-22T11:36:00.000-08:00

Cherry vs. Edmund's Direct Mail 09-21068 decided November 29, 2010 by the Honorable Carmine J. Taglialatella, J.W.C. - reserved decision.
Petitioner claimed that she was entitled to restoration of temporary disability benefits. She was treated and released from care by an authorized physician, she received temporary disability benefits during the time of this treatment. She was placed on permanent restrictions in her ability to work. She was terminated from her job because respondent could not accommodate her medical restrictions. She consequently received unemployment benefits (which ceased after a year), and she afterward needed further treatment for the foot wound. Respondent accepted responsibility for providing additional necessary medical treatment, but denied any temporary disability was due petitioner during the time of such follow-up treatment. After reviewing pertinent statutes and caselaw, the Judge of Compensation found the petitioner was entitled to temporary disability benefits during the time of such authorized follow-up treatment.

DWI/DUI Dismissed On Double Jeopardy Grounds

2010-12-06T13:39:00.000-08:00

STATE V. HAND, DOCKET NO. A-3901-09T3

"In this appeal by the State, we determine whether a guilty
plea to fourth-degree creating a risk of widespread injury or
death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent
prosecution in municipal court for certain motor vehicle 2
offenses. Defendant moved before the municipal court to dismiss
the motor vehicle charges on double jeopardy grounds. The
municipal judge denied the motion. On appeal de novo to the Law
Division, Judge Kyran Connor granted the motion, vacating the
guilty pleas and dismissing the complaint on double jeopardy
grounds. We affirm."

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Reopening Claims That Are Dismissed For Lack Of Prosecution

2010-11-29T10:29:00.000-08:00

Danter v. Arrow International, Inc., A-0111-09T3, (App. Div. June 30, 2010)
Petitioner s four claim petitions were dismissed on September 19, 2007 pursuant to
N.J.S.A. 34:15-54. The petitioner s attorney received the order dismissing the claims on
September 27, 2007. However, petitioner s attorney did not move to reinstate the four
petitions until October 3, 2008, over one year later. The Honorable Joshua Friedman,
J.W.C. refused to reinstate the petitions.
The Appellate Division ruled there was no impediment to the filing of a timely motion
for reinstatement for nearly the entire one-year statutory period. Despite the considerable
age of most of the petitions in question, and despite the fact that they still were not
capable of being moved due to petitioner's failure to provide discovery, petitioner here did
nothing but adopt a deliberate course of delay, choosing to expend as much of the one-
year period as possible without taking action.
The court reviewed cases where delays beyond even one year were excusable. One
involved a petitioner whose mental condition incapacitated her during the one-year
tatutory time period, and, therefore, she was permitted to reinstate the petition beyond
he one-year period. Beese v. First Nat l Stores, 52 N.J. 196 (1968). But the court said
that in the instant matter, attorney neglect was the main reason for the expiration of the
one-year period. Therefore, the court affirmed the decision of Judge Friedman to refuse
to reinstate the petitions.

HAPPY THANKSGIVING!

2010-11-25T16:04:00.000-08:00

From all of us at Silvi, Fedele & Honschke Attorneys At Law, have a Happy, Healthy and Safe Thanksgiving.

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New Jersey Appellate Division Rules Against Use Of Stalker Lidar

2010-11-16T05:08:00.000-08:00

The New Jersey Appellate Division ruled that the laser speed-measuring device known as the "Stalker Lidar" has not been proven to be scientifically reliable in New Jersey. The Court noted that although laser devices are generally accepted in the scientific community, in this case, there was no evidence as to the internal workings of the device.

According to the Court, "We do not know whether the accuracy of the Stalker Lidar device has been established through independent testing. In short, the device has not been established as scientifically reliable in New Jersey. As a consequence, it may not be used in the trial courts as proof of speed until its accuracy has been established[.]"

DOCKET NO. A-6199-08T4

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Heart Attack Claim Held Up in New Jersey Workers' Compensation Court

2010-11-12T18:27:00.000-08:00

The claimant contended in her dependency claim that strenuous
work and very warm temperatures led to her husband's heart attack and death.
Respondent argued that the decedent's prior hypertension, high
cholesterol and diabetes caused his heart attack and asserted that he would have had
the heart attack anyway. The legal issue centered on whether the work effort which
decedent engaged in was material and led to the decedent s heart attack.
The judge of compensation ruled for petitioner and held that the overtime work
contributed in a material way to the death. The Appellate Division
affirmed after reviewing the terms of N.J.S.A. 34:15-7.2 That provision puts emphasis on
proof of work effort in excess of the claimant's daily living. In other words, there is a
comparison made between the extent of exertion in one's normal life with the extent of
exertion on the date of injury. The court found that petitioners work effort on March 11, 2006 constituted a material worsening of his heart problems. In short, there was sufficient credible evidence in the
record, considering the proofs as a whole, to conclude that the work effort
contributed materially to the heart attack.

Reading v. Glen Gary Shale and Brick Company, A-1525-09T3 (App. Div. October 22, 2010)

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Effect of Expungement on Forfeiture of Public Office

2010-11-02T11:10:00.000-07:00

The New Jersey Supreme Court ruled that a criminal sentence including an order of forfeiture of public office with a provision for no future public employment does survive an expungement of the underlying offense. In this case, a police officer was convicted of a disorderly persons offense that touched upon her office. As a result she was subject to forfeiture of public office and a lifetime prohibition of employment with any political subdivision of the State of New Jersey. The petitioner subsequently got an order of expungement for the conviction and argued that the order eliminated both the underlying conviction and the forfeiture bar. However, the Court ruled that while the petitioner was clearly entitled to an expungement, the forfeiture requirement survives the expungement and continues as a bar to public employment.

In the Matter of the Expungement Petition of D.H.

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Come Visit Us at WWW.SFHLAW.COM

2010-10-25T15:41:00.000-07:00

At www.sfhlaw.com you can view the various practice areas we can assist you with. We will be launching an updated site with a new design and additional content in the near future.

We are a full service law firm based in Toms River with satellite offices in Brick and Forked River to more conveniently serve you. We concentrate in the areas of:

Governor's Conference on Housing and Community Development

2010-10-14T08:31:00.000-07:00

ATLANTIC CITY - Approximately 1,200 housing professionals, government officials, developers, lenders, nonprofits and consultants are gathered today at the Atlantic City Convention Center for the start of the 2010 Governor's Conference on Housing and Community Development being hosted by the Department of Community Affairs (DCA) and New Jersey Housing and Mortgage Finance Agency (HMFA).

Over the course of the next two days, conference participants will learn ways they can navigate today's turbulent economy and advance housing projects in communities throughout the state. Attendees can also get acquainted with programs available to help distressed homeowners avoid foreclosure, including the New Jersey Home Keeper program announced last week.

"The conference theme "Opening Doors" was picked for an important reason. Sometimes in downturns such as this it can seem as if doors to better times are shut and locked," said DCA Commissioner Lori Grifa. "But opportunities and assistance continue to exist even for people in the most challenging situations. Governor Christie's announcement last week of the New Jersey Home Keeper program is a prime example."

The New Jersey Home Keeper program, to be launched in January 2011, will be administered through the HMFA and is designed to assist unemployed and underemployed homeowners make their monthly mortgage payments for up to 24 months. New Jersey will receive $112 million in federal dollars through the Hardest Hit Fund, a federal foreclosure prevention initiative, for the new program.

The New Jersey Home Keeper program will provide a zero percent interest rate, deferred payment mortgage loans to unemployed and underemployed homeowners, who through no fault of their own, are financially unable to make their mortgage payments and are in danger of losing their homes to foreclosure. Loans will be capped at $48,000 per household and will not exceed 24 months.

The new program will be addressed today in one of the nearly 30 sessions available to conference participants. The conference will feature five workshop tracks, each of which will focus on different aspects of housing deals. The workshop session topics range from supportive housing, homelessness prevention and affordable housing design to energy efficient retrofits, tax credits, financing strategies and urban agriculture.

Attendees will also hear from world-renowned architect and designer and New Jersey native Michael Graves, FAIA, who is the luncheon keynote speaker. Since he founded his practice in 1964, Graves has designed more than 350 buildings worldwide, including the Walt Disney World Dolphin and Swan Hotels, as well as the award-winning Human Building in Louisville, Kentucky.

Conference highlights include:

Tuesday, September 28
Keynote Address Luncheon – 12:15 p.m.
DCA Commissioner Lori Grifa
Michael Graves, FAIA

Bus Tour of Atlantic City Community Development Projects – 2:30 p.m.
Participants will tour Atlantic City's innovative community development projects and learn how they are opening doors for a more sustainable future.

Wednesday, September 29
Excellence in Housing Awards Luncheon – 12:30 p.m.
The HMFA will honor eight organizations and one individual in recognition for their outstanding work in housing development.

The annual Governor's Conference on Housing and Community Development is sponsored by the Department of Community Affairs and the New Jersey Housing and Mortgage Finance Agency, a DCA affiliate. For further information about the conference, please call (609) 278-7400, or log on to http://www.nj.gov/dca/hmfa/.

NEW JERSEY HOMEKEEPER PROGRAM

2010-10-13T13:04:00.000-07:00

New Jersey's state Housing and Mortgage Finance Agency Website is at http://www.nj-hmfa.com/. Contained is the New Jersey Homekeeper Program which will provide zero interest deferred payment mortgage loans to homeowners who are unable to make payments, not due to their fault, and are near foreclosure. Loans will be capped at $48,000 per household. It is designed to assist unemployed, or the underemployed.

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MORTGAGE INTEREST RATES

2010-10-12T17:53:00.000-07:00

Oct 7, 2010, Freddie Mac published interest rates for a 30 year fixed loan to 4.27 %. This is the lowest on records dating back to 1971. The Mortgage Bankers Association on Oct 6, 2010 published that applications for mortgages on home purchases rose to the highest level since May, 2010. Last week new standards including higher credit scores and down payments went into effect.

NECK AND BACK INJURIES

2010-10-07T09:53:00.000-07:00

FREQUENTLY, I AM ASKED TO REPRESENT PEOPLE WHO SUFFER INJURIES TO THEIR NECK AND BACK in car accidents. These injuries are unique in that they are difficult to completely diagnose initially and often worsen over time. To understand these injuries it is important to understand how our backs are constructed.

The spine is the structural support system for our head and upper body and it surrounds and protects the spinal cord. The spinal cord is the main nerve “Super Highway” from our brains to our various body parts. Many individual nerves “branch off” this “Super Highway” and run down to our individual body parts. This is why someone who suffers a neck injury with nerve impingement can feel pain, numbness and tingling in the hand and fingers even though they never suffered a hand injury. Picture a car accident that stops traffic at the “hand” exit ramp on the “Super Highway”. The effects of this car accident, no traffic, will ultimately be felt at the endpoint of the exit.
The bones of the spine are called vertebrae. The bodies of the vertebrae are separated by discs. The role of the discs is to connect one vertebra to another while allowing for movement between them. Discs also contribute to the stability of the spine and provide shock absorbency. The easiest way to understand what a disc is and how it works is to picture a Zip Lock baggie filled with Jello. This Jello filled baggie is spongy and pliable and acts as a shock absorber between the bones of our spine (vertebrae). The vertebrae are at the front of the spine with bony components at the sides and back of the vertebrae that surround the spinal cord. The vertebrae have openings through the bone that allows the nerves exit the spinal column.
Our spine is divided into five segments. The neck, or cervical spine is the top portion; it is made up of 7 vertebrae. Below the cervical spine is the mid back or thoracic region, whose 12 vertebrae are attached to our ribs by cartilage. The low back or lumbar spine has 5 thick vertebrae. Below the lumbar spine is the sacrum, which lies between the two pelvic bones. It is actually one bone that was formed by the fusing of what initially were five. The lowermost segment is the coccyx, or tailbone.
Many have heard friends and/or relatives complain they have a “slipped disc”, technically, there is no such thing as a slipped disc. The more frequently used medical terms are “bulging disc” or “herniated disc”. Discs have a firm fibrocartilaginous outer shell (the Zip Lock baggie) and a softer, more gelatinous interior that contains a great deal of water, collagen and proteins (the Jello). Discs help to absorb the stress on the spine caused by everyday life such as moving, carrying, bending etc. In car accidents discs are most often injured in the neck and low back because this is the areas where there is the greatest movement and stress to the spine.

Sometimes due to the force of the impact and stress placed upon the spine the disc's outer shell (Zip Lock baggie) bulges out of its normal shape. This is called a “bulging disc”. This injury is less likely to produce significant nerve damage. This is because the baggie has not actually torn and so the inner gel (Jello) of the disc remains contained inside. As a result of suffering a bulging disc the immediate area may hurt because of irritation of pain receptors and other nerve endings, localized swelling and inflammation.

When the disc's outer shell (Zip Lock baggie) tears, or herniates, the inner gel (Jello) leaks out. Once the Jello is no longer contained in the baggie it can physically press on the nerve roots, where the nerves exit the spine, or on the spinal cord itself. This injury is called a “herniated disc”. Herniated discs can cause sensory symptoms such as numbness or tingling, as well as motor symptoms, or weakness. The type and degree of symptoms depends on which portion of the disc herniates and where or what the Jello is pressing on. Symptoms include neck pain, pain that radiating or travels from the injured disc down to another body part, and/or numbness or weakness into the arm or hand on the same side as the disc herniation. With a herniated disc pain is generally intensified with neck movement, especially leaning backward into an extended position. Turning from side to side can often further compress the nerve, increasing symptoms.

Over the years practicing here in Toms River and Ocean County I have observed many different types of treatment for neck and back injuries. This treatment includes but is not limited to; chiropractic manipulation, traditional physical therapy, oral pain and anti inflammatory medications, invasive pain management and unfortunately sometimes surgery. We are very fortunate to have many physicians specially trained and board certified to treat these injuries in the Ocean County area.

GMAC Mortgage Actions

2010-10-04T16:14:00.000-07:00

Bloomberg News Published that GMAC Mortgage halted its evictions in 23 U.S. states under allegations of improper affidavits, associated with Foreclosure Actions of Real Estate Loans. The affidavits are alleged to be absent of personal knowledge of the loan file, and sometimes signed without a notary present.

New Jersey Law Division not bound by Municipal Court DWI Plea

2010-10-04T15:59:00.000-07:00

The New Jersey Appellate Division decided this morning in State v. Enright, that the Law Division is not bound by an improperly granted order under State v. Laurick, 120 N.J. 1 (1990). The order in question provided that the defendant's previous municipal court DWI conviction could not be used for sentence enhancement purposes. However, the Law Division declined to follow the order based upon the fact that underlying relief should never have been granted in municipal court as the defendant was legally ineligible for relief under Laurick.

26 WEEK RULE

2010-09-13T08:54:00.000-07:00

A recent New Jersey Appellate Court decision entitled Collette v. South Jersey Transportation Authority, A-1175-09T2 (App.Div. September 7, 2010) dealt with the 26 Week Rule of the Workers' Compensation Statute.

In many claims the employer invokes the 26-week rule, which states that compensation for permanent disability, total or partial, shall not be determined or awarded until after 26
weeks from the date of the employee's final active medical treatment, or until after 26
weeks from the date of the employee's return to work, whichever is earlier.

Global Real Estate Trends to Watch for the Near- to Mid-Term

2010-09-09T19:47:00.000-07:00

A bottom will be reached eventually in virtually all markets. Business will pick up gradually. Assuming that the global recovery truly gets underway, home sales may rebound reasonably well by 2011 or 2012. However, many owners of homes and commercial properties will remain in a difficult position as their properties have a current value of less than what the owners paid, and many mortgage debts are at higher levels than what the underlying properties are worth.

Many major development projects are downsized, delayed or canceled.

The commercial property investment sector remains slow. Vacancies remain high, particularly in retail shopping centers and many office markets.

Commercial mortgage delinquencies and foreclosures will continue to be a big problem, and funding for speculative commercial projects remains extremely difficult to obtain. U.S. banks held $1.8 trillion in commercial property loans on their books as of early 2008, and write offs on those loans are projected to run as high as 12%, or more than $200 billion, by the end of 2010.

On the corporate level, the trend will be towards consolidation of development and construction firms, particularly as stronger firms acquire weaker rivals. Cost control, debt reduction and risk management will be a core focus. Healthy development companies will acquire important tracts of land at bargain prices for future use. (In early 2009, Pulte agreed to acquire competitor Centex for $1.3 billion.)

National government investments in transportation infrastructure such as highways, education facilities, government offices and health care facilities will offer opportunities to commercial construction firms. A large portion of national government “stimulus” construction spending will be funneled to state and local projects.

Source: Plunkett Research, Ltd.

Worker Entitled To Sue His Employer For Inentional Harm

2010-09-09T07:56:00.000-07:00

Van Dunk v. Rickson Associates Realty Corporation

Generally, a worker is barred by the New Jersey Workers Compensation statute from suing their employer. In this case, the Appellate Division found that the company intentionally disregarded plaintiff’s safety in an effort to “increase defendant’s profit
and productivity.” It said, “The fact that plaintiff’s safety was sacrificed for
defendant’s benefit is reinforced by the events following his accident. After OSHA
had finished its investigation, defendant was able to relocate the sump by using
the trench box it had on site without harm to any of its employees.” While the court
did not find deception by the defendant or removal of a safety device, it felt that
the actions of the defendant were akin to deliberately exposing plaintiff to a known
hazard. The court further commented that this sort of injury is not a fact of
industrial life (the “context” prong of the Millison test) and that there were simple
safety devices that could have been used to prevent this injury.

At Home Fall Caused By WC Injury Ruled Also Compensable

2010-09-02T19:36:00.000-07:00

Romanovsky v. River Edge Transportation Company - by the Honorable Philip Bolstein, J.W.C. - New Jersey Workers' Compensation Court
Petitioner suffered a compensable injury to his lower back. Thereafter he fell and injured his wrist at home, alleging the fall at home was due to his lower back injury. The workers’ compensation judge held that petitioner’s wrist injury was also compensable as causally related to the work disability. The judge also found respondent unreasonably delayed in paying temporary benefits and penalized respondent pursuant to N.J.S.A. 34:15-28.1.

DO I HAVE THE RIGHT CAR INSURANCE?

2010-09-02T10:09:00.000-07:00

On an almost daily basis I am asked by clients:

DO I HAVE THE RIGHT CAR INSURANCE?
UNFORTUNATELY, by the time someone asks this question it is already too late. Usually, tHIS question comes up AFTER an accident occurs and the victim is stuck with the insurance choices they have already made. The purpose of this letter is to give our clients some idea of what the choices are BEFORE you are involved in an accident. To best explain your choices it is necessary to understand what car insurance is and how it works.
In 1972, New Jersey passed laws that require car owners to purchase insurance that includes bodily injury and property damage liability coverage to protect the owner/insured for claims against them; uninsured motorist coverage to protect the owner/insured if they are injured in an accident with an uninsured driver; and personal injury protection coverage to pay for accident related medical expenses, loss of income or loss of essential services.
The reason for this required insurance is to provide prompt compensation to people injured in car accidents and to provide financial security to cover those claims. This law allows you, as a car owner, to buy insurance that protects your own financial assets if you injure someone in a car accident. In addition you can buy insurance that will provide coverage to you, family members who reside with you and to occupants of your car if they are injured in an accident caused an uninsured or under insured driver.
A “standard” policy must provide liability and uninsured motorist coverage with minimum limits of $15,000 per injured person with a total of $30,000 per accident. This is the MINIMUM amount of coverage. Oftentimes your insurance agent will tell you that this MINIMUM coverage combined with collision insurance provides you with “FULL” coverage. That is incorrect. This coverage only protects you up to $15,000 per injured person and $30,000 TOTAL no matter how many people are injured. As an extreme example imagine you are responsible for an accident with a minivan containing seven passengers, all of whom are injured. This “FULL” coverage will only provide you with liability insurance of $30,000 for all seven injured people, after that you are on your own. If it is your family of seven in the mini van and you are all injured by an uninsured driver your insurance company will only provide $30,000 in coverage to be divided amongst the seven injured family members.
Most people are unaware that you have the option to buy additional uninsured coverage up to $250,000 per person and $500,000 per accident split limits or $500,000 single limit. The sole requirement is that you must also increase your liability coverage to the same amounts. Your insurance agent often does not suggest you increase your coverage to better protect yourself and your family for one simple reason, their profit is in writing the initial policy. Premium increases for more coverage are relatively minor compared to the initial cost of the policy and do not make up for the greater financial exposure to the insurance company should serious injury occur.
When asked, I recommend that, in a perfect world, you purchase car insurance with liability and uninsured/under insured coverage of $500,000. In addition, you should purchase a personal catastrophe umbrella with liability limits of $1,000,000. Some insurance companies offer an umbrella with uninsured/under insured motorist coverage of $1,000,000. Although this increase will raise your premiums, I think, after the initial “sticker shock” of the standard policy, you will be surprised to learn it will be less than you had feared.
In addition, standard policies provide Personal Injury Protection (PIP) benefits with medical expenses up to $250,000 and a deductible of $250.00. The law allows you to reduce the amount of medical expense coverage as low as $15,000 and to increase the deductible to as high as $2,500.00. If you figure it out, the $15,000 of coverage with a $2,500 deductible only provides you with $12,500 worth of coverage if you have a severe injury. Worse if your injury is not severe and you have relatively typical medical treatment (under $2,500) your car insurance provides you with NO coverage. This option is a trick it saves you very little but reduces the insurance companies responsibility from $250,000 to $12,500. The small amount of savings on your premium does not justify the tremendous loss in benefits. I recommend that you reject the option and purchase the full PIP coverage provided by the standard policy.
Recently, a new option has surfaced. This option allows you to select your health insurance, instead of your car insurance, to cover your accident related medical bills. In return your car insurance company will slightly reduce your premiums. On its face this seems like a great idea for those of us who have health insurance. However, there are several dangers to this option. The first is if your health insurance has a “cap” on benefits you lose the additional $250,000 of coverage your car insurance would provide if you suffer a catastrophic injury. Also you would make your accident related treatment subject to your health insurances deductibles and limit your treatment to “participating providers”. Finally, if you recover financial compensation for your injuries suffered in the accident you are responsible to pay your health insurance company back out of your recovery. You are NOT required to reimburse your car insurance for your PIP benefits. This reimbursement will significantly reduce any recovery you may obtain.
Finally, 95% of car owners in New Jersey select what is known as the “Limitation Upon Lawsuit” or “Verbal” Threshold Option on their car insurance. Although this option does save you approximately $400 per year it is important that you realize that if you make this selection, you are severely limiting your rights to be compensated from the person who injured you. This option ONLY allows compensation for an injury that falls into one of the following limited categories:
1) Death;
2) Dismemberment;
3) Significant disfigurement;
4) Displaced fractures;
5) Loss of a fetus; and
6) Permanent injury, provable by objective medical evidence, which will not heal
to function normally even with medical treatment.
As you can see the above list is extremely limited. Please notice terms such as “pain” “suffering”and “disability” do NOT appear anywhere on this list. If you select this option you can suffer an injury that leaves you in constant pain for the rest of your life, but if the injury does not fit in one of the 6 categories listed above you are not permitted to recover financial compensation.
I understand the savings provided by the “Limitation Upon Lawsuit” may be substantial, therefore I only suggest that you carefully consider what you are giving up when you make this selection.
Car ownership is a serious and complicated matter, with serious risks and obligations, more serious than many contemplate.....often until it is too late. If you own a car, you must accept the responsibility to purchase insurance that will provide you with adequate coverage if you are injured in an accident and will protect your assets if someone else is injured. I am certain when you purchased your car you researched it and chose wisely. Please take the same care and choose your insurance coverage wisely.
As always I am available to answer any of your questions and discuss this issue in more detail.

Visit us at http://www.sfhlaw.com/ for contact information.

DWI/DUI/ALCOTEST UPDATE

2010-09-02T05:06:00.000-07:00

In an UNPUBLISHED decision released yesterday captioned State v. Maricic, the Appellate Division ruled that a defendant in a drunk driving case has the right to receive as part of his discovery the data download stored on the Alcotest instrument used for his test for the period ranging from the date of the last calibration until the date of the defendant's arrest. The defendant is required to pay for any associated, additional costs with producing this discovery. In addition, the defendant is also entitled as part of his discovery to the repair records for the Alcotest instrument upon which he was tested.

Civil Reservation Limitation

2010-08-31T04:53:00.000-07:00

The New Jersey Appellate Division, in State v. Lacey, ruled that the protections afforded by a civil reservation as part of a criminal or municipal guilty plea are limited to those civil actions where the plaintiff seeks to recover money damages. It does not apply to other collateral, civil actions where, for example, the State or other governmental entity is the plaintiff.

This case is of particular importance in criminal cases in both the municipal and Superior Courts.

New Jersey Federal Court finds Bad Faith Claim against Workers' Compensation carrier is not barred by exclusive remedy provision

2010-08-27T17:53:00.000-07:00

Davis v. OneBeacon Insurance Group, 09-cv-4179, (D.N.J. June 28, 2010).
In this case the petitioner injured his left shoulder while working. He filed a
claim petition in the Division of Workers’ Compensation. The WC carrier, defendant in the civil law suit, authorized a treating physician. The authorized physician recommended surgery. The WC carrier refused to authorize the surgery. Petitioner repeatedly requested approval for the surgery, but the
carrier refused. Petitioner filed a Motion for Medical and Temporary Disability
Benefits on September 20, 2006. On April 18, 2007, the Honorable Robert
Butler, JWC, found that the WC carrier was obligated to approve the surgery and
that its refusal to approve the surgery violated Section 15 of the New Jersey
Workers’ Compensation Act. The judge assessed a 25% penalty under
N.J.S.A. 34:15-28.1 and awarded counsel fees and costs. The court described the conduct of the carrier as “unconscionable.”The judge went on to admonish the carrier:
The additional and prolonged pain and obvious mental anguish of
the Petitioner that has been caused by the appalling and
unconscionable conduct of OneBeacon are neither cognizable nor
compensable based upon the provisions of the Workers’
Compensation Act. Only the nature and extent of the Petitioner’s
permanent disability following his recuperation from surgery is
compensable in this court.
As regrettable as that may be, the Petitioner is not left without a
possible source of redress against OneBeacon for his pain and
suffering. The Court suggests that Petitioner’s counsel direct his
attention to the case of Rothfuss versus Bakers Mutual Insurance
Company of New York, 107 N.J. Super. 189, 257 A.2d 733 (1969).
Thereafter petitioner filed a complaint in the Superior Court of New Jersey on April
13, 2009, alleging that the carriers refusal to authorize necessary medical
treatment caused him injuries that are not recoverable in workers’
compensation, including pain and suffering, mental anguish and emotional
distress. The carrier moved to dismiss the law suit and argued, in part, that
the suit was barred by the exclusive remedy provision of the New Jersey
Workers’ Compensation Act and by the statute of limitations.
The Federal court went on to deny the the carriers motion to dismiss and the case has survived.

Silvi, Fedele & Honschke Attorneys At Law, launches TOMS RIVER LAW BLOG

2010-08-17T13:42:00.000-07:00

The attorneys of Silvi, Fedele & Honschke have launched the TOMS RIVER LAW BLOG. We intend to provide posts of interest to our clients and community. Silvi, Fedele & Honschke is a full service law firm providing services to clients throughout New Jersey. We concentrate in the areas of: Personal Injury, Workers Compensation, Real Estate, Municipal Court, Criminal, Tax Appeals, Social Security, Landlord/Tenant, Commerical Litigation, Wills & Estates, and Divorve & Family Law. We have offices in Toms River, Lacey Township (Forked River) and Bricktown. Come visit us http://www.sfhlaw.com/