Two Important Decisions In 2000
In the case of Walsh v. RCA/General Elec. Corp., 334 N.J.Super. 1 (App. Div. 2000), the Second Injury Fund was held responsible for payments in a situation where a worker retired in 1984 for a period of 11 years before becoming totally disabled by asbestosis in 1995. This case appears to be the first published decision in New Jersey requiring the Fund to contribute following a lengthy retirement.
The facts are that Mr. Walsh worked for RCA/GE as a maintenance mechanic and electrician from 1958 until 1972, when he suffered a second heart attack. During this period of employment he was exposed to asbestos. In 1972 he began doing lighter work but continued with RCA/GE until 1984, at which point he took a service-based (non-disability) retirement. He said that the work demands by 1984 were in excess of the restrictions that had been imposed on him by his cardiac physicians. He also started to receive social security retirement benefits. In 1991 petitioner contracted asbestosis due in part to work with RCA/GE. The judge of compensation found that he was totally and permanently disabled as of 1995.
In a surprising decision, the judge of compensation held in the Second Injury Fund on the basis that the prior disabling condition was the heart attack, and that the last compensable condition was work-related asbestosis, even though that condition did not become totally disabling until 11 years after the petitioner retired! The appellate division agreed with the compensation judge and rejected the Fund's arguments that it should only be liable when a work-related injury or illness forces the employee to leave the work force. The appellate division accepted the judge's finding that this worker was only partially disabled until 1995 because retirement from one job does not necessarily preclude work in another job. In this case, Mr. Walsh did not even seek employment between 1984 and 1995.
When employers are last in line at the time a latent disease manifests, this case may help them join the Second Injury Fund assuming there is evidence of prior disability. Retirement itself even after conditions like heart attacks may not prevent the employer from successfully joining the Second Injury Fund.
A less beneficial case for employers is Brower v. ICT Group, 162 N.J. 486 (2000). In this Supreme Court decision, petitioner was a telemarketer employed by ICT Group. She was injured May 9, 1997 falling down concrete stairs within a two story, multi-tenant building. ICT Group was located on the second floor of the building. There was an elevator in the front of the building, a front stairway next to the elevator, and a back stairway where petitioner fell.
The rear stairway in the building opened only into ICT's leased premises and the basement. The stairway was fully enclosed and the top floor was carpeted with the same floor covering as inside ICT Group's offices. There was a doorway which led directly from the top landing into ICT Group's premises. Employees of ICT used the rear stairway regularly, and the landlord cleaned the rear stairway.
Petitioner punched out on the time clock on the date of the accident, walked to the rear stairway, and fell from the top landing of the stairway. Both the workers' compensation judge and the appellate division found the case to be non-compensable because the injury took place off premises on property not owned by the employer.
The Supreme Court reversed and found the accident compensable, holding that the term "control" is more expansive than that used in formal property law. The court held that the employer knew or should have known that its employees used the back stairway for ingress and egress and for smoking breaks. Given that the employer took no action to prevent employees from using the stairway, respondent "ratified" their use.
This case does not mean that accidents in common areas of buildings are compensable. It does, however, open the door for more exceptions to the going and coming rule. Accidents in areas like stairways and elevators which employers had in the past denied will be harder to defend based on this decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.