Essential Workers and Workers’ Compensation for Contracting COVID-19

Typically, to receive workers’ compensation in New Jersey, an employee must prove they suffered a job-related illness or injury.

Essential Workers and Workers’ Compensation for Contracting COVID-19A recent law creates a presumption during the ongoing public health crisis that essential employees’ illnesses are related to their work. New Jersey Governor Phil Murphy signed Senate Bill (SB) 2380 into law. SB 2380 creates a rebuttable presumption of workers’ compensation coverage for COVID-19 cases contracted by “essential employees” during a public health emergency declared by the executive order of the governor. The law is effective immediately and retroactive to March 9, 2020.

The law defines an essential employee as an employee in public or private sector who during a state of emergency

Public Safety Worker or First Responder

  • including any fire, police, or other emergency responders

Providing Care Related Services

  • medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes

Essential Roles in Close Proximity to the Public

  • performs functions that involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel, and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or

Deemed Essential Employee by Public Authority

  • Any other employee deemed an essential employee by the public authority declaring the state of emergencies such as grocery store workers, pharmacy employees, medical supply stores, gas station attendants, convenience store employees, cashiers and store clerks, childcare employees, or construction workers.

What Does the Law Say?

Under the law, in a public health emergency declared by the governor, if an individual contract COVID-19 during a time in which the individual is working as an essential employee in a place of employment other than the individual’s own residence, there will be a rebuttable presumption that the contraction of the disease is work-related and fully compensable for workers’ compensation benefits.  A rebuttable presumption is an assumption made by a court taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty. A rebuttable presumption is often associated with prima facie evidence.

An employer may rebut this presumption by a preponderance of the evidence showing that the worker was not exposed to the disease while working in a place of employment other than the individual’s own residence.

Establishing a presumption of compensability for certain essential workers during the pandemic has become a growing trend among states that significantly lessens an employee’s burden of proving that a COVID-19–related illness is compensable under workers’ compensation laws. Details of these state law amendments vary. In states that have implemented a rebuttable presumption, such as New Jersey, employers will face the difficult burden of proving that an alleged COVID-19 contraction is not work-related. However, while employers in these states may be faced with an uptick in workers’ compensation claims, employers will also likely be insulated from civil liability pursuant to the workers’ compensation bar, absent some exceptions to the bar, such as the intentional injury exception.

How Will This Impact Employers?

Contact Trenton NJ Workers Compensation Lawyers TodayThis law will encourage the filing of workers’ compensation claims for COVID-19 infections. It makes defending an occupational infection case much harder for employers. This law provides that losses associated with workers’ compensation claims are not be included in calculating an employer’s Experience Modifier Rate or otherwise affect an employer’s insurance premium rate for the employer’s workers’ compensation policy. This would provide some protection to employers against any increased premiums.

It is not new for New Jersey to take such proactive measures to protect its public safety employees. New Jersey was at the forefront in creating protection for first responders, including first aid and rescue squad members, police, correction officers, nurses, medical technicians, and other medical personnel with the Canzanella Act‘s passage in July 2019, which created a rebuttable presumption of workers’ compensation coverage for those who can establish evidence of exposures to communicable diseases in the workplace. This Act was already being applied to the COVID-19 pandemic. However, this latest presumption greatly expands the definition of “essential employees” to many individuals working in the private sector.

Contact Trenton NJ Workers Compensation Lawyers Today

Our team’s skill, and dedication to your family, can make all the difference in securing compensation for the unwarranted loss of your loved one in  Trenton, Princeton, Hamilton, and the greater Mercer County area.

It is good to know that protection for essential workers and compensation is available if needed.  If you have a workers’ compensation case, feel free to contact The Law Office of Kamensky, Cohen & Riechelson online or through our Trenton office at 609.528.2596. We look forward to working with you.

 

Impact of COVID-19 on NJ Workplaces – Employment Attorneys Needed

We are not where we envisioned ourselves months ago.  COVID-19 continues to affect our lives and workplaces.

The “new normal” is still foreign to us all, while hopes for widespread vaccination have begun to provide some respite from the lockdowns, quarantines, and closed businesses.

What has changed legislatively?

New Jersey and New York Workplaces and COVID-19  The U.S. House of Representatives passed the Families First Coronavirus Act (H.R. 6201) (the “Act”) on March 14, 2020. The Act amends the Family and Medical Leave Act (“FMLA”) and provides additional reasons for leave as well as mandated pay. Under the FMLA, for employees who were employed with the employer the previous 12 months and worked a minimum of 1,250 hours during said 12 months, such employees were able to take up to twelve weeks of unpaid leave for serious health issues or care for a newborn while, at the same time, maintain the comfort of job protection. The FMLA only applied to employers with 50 or more employees and unfortunately expired on December 30, 2020.  Employees are now instructed to negotiate to leave with their employers to care for dependents who do not attend school or other programs as vaccine access has opened.

What can employers do to ensure employee safety and health?

An employer may take the following steps to ensure the safety of its employees:

  • If an employee has been absent from work, an employer may ask if it was due to a medical reason. (An employer is always entitled to know why an employee has not reported to work, but not the specific medical condition).
  • Require employees who have been absent to provide a doctor’s note certifying they are fit to return to work.
  • Insist on face masks, hand washing, and social distancing to prevent the spread of COVID in work and rest areas are required to protect employees, customers, and others who come into physical contact with its operations from the spread of COVID-19. The requirements address such measures as social distancing, wearing face masks, health checks, and cleaning and disinfecting high touch areas.

What should an employer do if a worker appears ill?

If any employee presents themselves at work with a fever or difficulty breathing, they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution. Supervisors should be retrained on the importance of not overreacting to workplace situations potentially related to COVID-19 to prevent panic among the workforce.

Can an employee refuse to come to work because of fear of infection?

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  However, most work conditions in the United States do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

What if an employee tests positive for COVID-19?

Contact Our Mercer County Personal Injury Attorneys TodayThe infected employee should be sent home until released by their medical provider or local health provider. All employees who worked closely with that employee should be sent home to ensure the infection does not spread. Before the infected employee departs, ask them to identify all individuals who worked nearby (within six feet) for a prolonged period of time (10 minutes or more to 30 minutes or more) with them during the 48-hour period before the onset of symptoms to ensure you have a full list of those who should be sent home.

Those employees should first consult and follow their healthcare providers or public health department’s advice regarding the length of time to stay at home. The CDC recommends that those who have had close contact for a prolonged period of time with an infected person should remain at home for 14 days after the last exposure. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, three days without a fever (achieved without medication), and improvement in respiratory symptoms (e.g., cough, shortness of breath).

Contact Our Mercer County Personal Injury Attorneys Today

At The Law Office of Kamensky, Cohen & Riechelson, we have extensive experience helping clients across Mercer County, Trenton, Princeton, and Hamilton recover the compensation they need and deserve for their injuries. We work closely with investigative and medical experts to help prove your claim and provide honest, intelligent, and diligent service to all of our clients.

If you need help dealing with your employer and any facet of this challenging time, call or contact us.  At The Law Office of Kamensky, Cohen & Riechelson, our experienced attorneys are ready to help resolve any conflict you have with your employer.  Call us at  (609) 528-2596.

Compensatory and Punitive Damages in NJ Medical Malpractice Claims

New Jersey is One of the Best States For Patient Medical Malpractice Outcomes 

A New Jersey medical malpractice attorney can provide guidance, support, and legal counsel as you seek to hold a health care professional responsible for negligence or medical errors.

What damages can a MeCompensatory and Punitive Damages in NJ Medical Malpractice Claimsdical Negligence Victim recieve in NJ?A study in the Journal of Patient Safety estimates that hospital errors are now the third leading cause of death in the United States behind heart disease and cancer, with approximately 440,000 deaths each year. If a physician, medical facility, or other medical provided caused your injury, you might receive compensation for your damages by filing a medical malpractice claim. Medical malpractice laws in New Jersey can be complicated and difficult to understand, and the requirements for holding a medical provider liable for malpractice can seem overwhelming. However, unlike many other states, there are no caps on certain kinds of damages awarded.

Common Preventable Medical Errors in NJ

New Jersey medical malpractice attorney can provide guidance, support, and legal counsel as you seek to hold a health care professional responsible for negligence or medical errors. Of all of the hundreds of thousands of medical mistakes that occur each year in hospitals and other medical settings, the most common preventable medical errors that may lead to medical malpractice claims include:

  1. Misdiagnosis. Failure to diagnose an illness is a common medical mistake. The most misdiagnosed conditions are heart attack and cancer. The failure to diagnose life-threatening conditions can have devastating consequences and cause catastrophic injuries. A proper diagnosis made promptly could be the difference between life and death. When your doctor or medical specialist fails to diagnose your condition, he or she delays the treatment you need to get well and could adversely affect your prognosis.
  2. Surgical errorsSurgical errors are another common medical error, often causing irreparable damage. Whether the surgical team left tools or sponges inside the body during surgery, the wrong side or site was operated on or even performed on the wrong patient.
  3. Failure to treat. This error occurs when the doctors correctly diagnose a condition but fail to treat it according to the acceptable standard of care. Discharging a patient too soon, or the lack of follow-up care, can make conditions worse and lead to injury.
  4. Anesthesia errors. Proper use of anesthesia is complicated: too little, and the patient feels every move the doctor makes, too much, and the patient could slip into a coma. Errors with general anesthesia can lead to permanent tingling or numbness in extremities after treatment or a type of arrhythmia during a treatment called tachycardia, where your heart beats at an accelerated and/or abnormal rate.
  5. Emergency room errors. Emergency rooms are chaotic places, and the medical personnel and staff who work in them are often fatigued and overworked. Patients whose conditions were missed or exacerbated because of an emergency room mistake could have their health severely jeopardized.
  6. Birth injuries. A significant portion of medical malpractice claims is against OBGYNs for childbirth-related medical mistakes. Conditions such as shoulder dystocia or other nerve damage, spinal cord injuries, cerebral palsy, and cephalohematoma are common birth injuries that medical errors could have caused.
  7. Prescription drug errors. From illegible prescriptions to incorrect dosages to pharmacy errors, medication mistakes are among the most common – and most dangerous – types of medical malpractice cases. Doctors make errors in prescribing the wrong medication, incorrectly dosing, and administration of prescription drugs. Other drug errors include prescribing drugs that can cause harm to the patient when they interact with one another.
  8. Healthcare providers under the influence. Prescription drug abuse is a growing problem that deadly, extends to the very people we trust with our lives. Abusing prescription drugs or taking illicit ones while at work can hinder judgment and decision-making skills.  You want a guarantee that the health workers helping you are at their best.

Why Do Malpractice Claimants Benefit More in New Jersey?

Why Do Malpractice Claimants Benefit More in New Jersey?There are two distinct types of damages in a New Jersey medical malpractice case that may be awarded: compensatory damages and punitive damages. Compensatory damages are intended to compensate the victim for the loss associated with their injuries. There are two forms of compensatory damages: economic and non-economic. Some of the elements that may factor into a compensatory damages award include:

  • Medical expenses, including past medical bills and cost of future care
  • Loss of income, including wages lost during medical treatment/hospitalization and future loss of income if the victim is no longer able to work or has reduced earning potential
  • Pain and suffering, including mental and emotional suffering resulting from the victim’s injuries
  • Loss of enjoyment of life
  • Loss of companionship and/or loss of family income in the case of wrongful death

There is no cap on compensatory damages in New Jersey medical malpractice cases. In other words, New Jersey law does not limit the amount a medical negligence victim can receive for their injuries.

What Are Punitive Damages?

Punitive damages can be sought once a compensatory case has been won in favor of the patient, but there is a cap. In a medical malpractice lawsuit, the court can award up to $350,000 or five times the number of compensatory damages, whichever amount is greater.

When determining if punitive damages should be awarded, the court will examine all relevant evidence, including but not limited to:

  1. The likelihood at the time that the defendant knew their conduct would cause serious harm.
  2. The defendant’s awareness of reckless disregard for the harm that their conduct may cause
  3. The defendant’s conduct after learning that their initial action would likely cause harm; and
  4. The duration of the conduct of any concealment of it by the defendant.

Consult with an Experienced Medical Malpractice Attorney in Mercer and Middlesex County, NJ

We understand a medical injury has effects far beyond your finances. The results of medical malpractice can extend to every area of your life, which is why we are so committed to fighting for the compensation our clients deserve. If you have questions, the New Jersey attorneys at The Law Office of Kamensky, Cohen & Riechelson are here for you.  Contact us by calling (609) 528-2596 or fill out an online form.

Car Accidents More Prevalent Due To Daylight Savings Time

17 percent increase in traffic incident-related deaths the Monday after the daylight-saving time (DST)

Car Accidents More Prevalent Due To Daylight Savings TimeDaylight Saving Time (DST) is the practice of setting the clocks forward one hour from standard time during the summer months and back again in the fall to make better use of natural daylight.  But have you ever thought about the possibility that daylight-saving time (DST) might actually be dangerous? When the clocks spring forward and fall back each year, it is only by an hour, but research suggests it may take days to adjust to the time difference, and during that adjustment period, there is a spike in car crashes, especially after we “spring forward” and lose an hour of sleep.

What do researchers say about vehicle safety and DST?

Researchers at the University of Colorado at Boulder studied the DST change that could have caused the daylight saving time period (from March to November 2002-2011) and found over 30 deaths annually. The U.S. government’s Fatality Analysis Reporting System saw a 17 percent increase in traffic incident-related deaths the Monday after the springtime change. Traffic fatalities all that week were also higher than average. Some of the effects can be attributed to lower visibility because it is darker in the earlier hour. Still, most of the accidents, experts say, were because people struggle to stay awake behind the wheel. Some police departments say that there’s about a 10 percent increase in crashes just after the change.

In 2020, a study published in Cell Biology looking at motor vehicle fatality data from the Fatality Analysis Reporting System (1996-2017) found a 6 percent increase in motor vehicle fatalities the week DST started, most of which occurred in the mornings. This fatality rate decreased the week after DST started, and there was no subsequent increase in traffic deaths when the clocks reverted to Standard Time in the fall.

The traffic statistics alone seem like conclusive evidence that daylight saving time is more than a mere inconvenience. Researchers say that the grogginess we feel for the first couple of days after we change the clocks might just be scratching the surface of how our bodies actually process the disruption. People who only sleep four or five hours a night under normal circumstances are at a much higher risk of causing a car crash than people who sleep six or seven hours a night.  The effect is lessened for those who sleep more than seven hours a night, but most statistics indicate that most working Americans are frequently in a sleep deficit. When sleep cycles are disrupted even further, the problem of groggy/sleepy driving is only exacerbated.

What is drowsy driving?

Drowsy driving is a serious problem that can lead to life-threatening car crashes. Drivers who do not get enough sleep the night before are at the most significant risk of a crash. Drivers suffering the effects of DST may also feel sleepy and could cause an accident.

Are there other dangers?

The springtime shift has been linked to health problems, including increased risk of heart attacks, strokes, depression, workplace accidents, and suicides. Without sleep, we are more prone to crave unhealthy, high-calorie foods, and we are less likely to exercise. This combination can cause you to feel more irritable and less productive. Not to mention, the more sleep-deprived you are, the more likely you are to get sick.

It seems incredulous that such a slight change in our schedules could trigger such dire consequences, but fatigue can affect when and how much we eat, our exercise routine, and of course, our sleep schedules.  More studies are needed to determine how a temporary kind of jetlag feeling, lasting 2 weeks at most, can significantly influence health and well-being.

What can I do to combat the effects of DST?

  1. Avoid using electronics less than an hour before bed. Electronic devices emit a blue light, which tricks your brain into thinking it is daytime.
  2. Watch your caffeine intake. Drinking caffeine up to 6 hours before bedtime can make you lose an hour or more of sleep.
  3. Ease into the time change. Shift your bedtime by 10 minutes every night, beginning a week before the time change.
  4. Stick to a strict sleep schedule and create a bedtime routine. Try to get ready for bed at the same time every night (even on the weekends). Creating a routine, such as a bath or a shower, meditation, deep breathing/stretching exercises, or a warm cup of tea, are all great ways to get your body and mind to relax.
  5. Nap if you need to. Naps are a great way to recharge during the day.  Just make sure they are not longer than 30 minutes, or you could have trouble sleeping at night.

Contact Our Mercer County NJ Lawyers Today

If you or someone you know has been in an accident due to the effects of DST fatigue, or for any reason, contact The Law Office of Kamensky, Cohen & Riechelson at (609) 528-2596.  Let our legal team help you get the settlement to which you are entitled.  We provide excellent legal service and are prepared to work on your case to obtain the best result possible.

Aggressive Driving and Road Rage Laws in New Jersey

New Jersey is known for its bumper-to-bumper traffic, complicated roads, and intense, often combative drivers. Trenton and Somerset NJ Attorneys Discuss. 

Aggressive Driving and Road Rage Laws in New JerseySometimes, congested highways and people in a hurry provide the perfect storm for road rage to rear its ugly head.  Road rage is not just offensive, it can be hazardous, and it is a problem that has been on the rise as more and more vehicles fill the same congested streets. In recent studies done by AAA, throughout the United States, more than 80% of drivers admitted to driving aggressively.

Aggressive driving can include actions that one may consider a normal part of driving, such as speeding, cutting others off, honking the horn repeatedly, or using angry hand gestures.  In some unfortunate instances, that aggressive driving turns into road rage.  It is estimated that thousands of people have been seriously injured every year due to road rage, and hundreds have been killed.

What is Road Rage?

Road rage is aggressive or angry behavior exhibited by motorists. These behaviors include rude and offensive gestures, verbal insults, physical threats, or dangerous driving methods, including longhorn honks, swerving, tailgating, or brake checking. Those actions are targeted toward another driver or non-drivers such as pedestrians or cyclists to intimidate or release frustration. Road rage can lead to altercations, damage to property, assaults, and collisions that result in serious physical injuries or even death. At times, drivers will get out of their vehicles to start a physical fight on the roadway.

How prevalent is road rage in New Jersey?

A survey consisting of 1,012 New Jersey consumers with valid driver licenses who operate a vehicle at least once per week included questions about personal driving behavior and observed driving behavior to measure tendencies and attitudes regarding aggressive driving. The study had a 95 percent confidence interval and +/- 2 percent margin of error. It was conducted by Plymouth Rock Management Company of New Jersey, and the findings were shocking:

  • 99% witnessed at least one road rage incident
  • 96% perceived that other drivers disobey posted speed limits on major highways
  • 89% witnessed other drivers change lanes without signaling
  • 59% witnessed other drivers make insulting gestures
  • 35% reported occasional “uncontrollable anger” behind the wheel
  • 11% witnessed other drivers engage in physical altercations

How are aggressive driving and road rage different?

How are aggressive driving and road rage different?Road rage occurs when there is intent to produce bodily harm to someone else.  A driver engaging in road rage may use his vehicle as a weapon or use something else in the car to harm the other person.  According to the American Safety Council, over one-third of road rage cases involve firearms.  Road rage is considered a criminal offense due to the attack’s intentional nature and is taken very seriously by law enforcement. While equally uncalled for, aggressive driving is a much milder form of driving and is usually limited to a small incident, not resulting in damage.

How have New Jersey road rage laws changed?

A 2012 law termed “Jessica’s Law” was created after a 16-year old girl named Jessica Rogers was disabled in a car accident that resulted from road rage. Although she had had two dozen surgeries since the accident, the other car driver spent only four months in jail. Jessica worked to create stiffer penalties for road rage that results in injury to another, saying that while she serves a life sentence, the man who caused her injuries received only 4 months in prison.

After successfully lobbying in the state’s Assembly, the bill was passed unanimously, and Jessica’s Law became a reality.

Under the new law, if road rage leads to a serious injury, such as Jessica’s, the driver can be charged with a third-degree offense. Third-degree offenses in New Jersey are punishable with three to five years in prison and a fine of up to $15,000.  If the aggressive driving leads to injuries of a lesser degree, the driver can be charged with a fourth-degree offense, which is punishable with up to 18 months in prison and a $10,000 fine.

How can I avoid getting angry when I drive?

Leave on time.

If you feel less rushed, you will have less reason to get upset by other drivers.

Listen to music.

If you listen to music, you have something that distracts you. Music has a calming effect.  Audiobooks are a good idea as well.

Pull Over.

No, don’t pull off where the other driver went to. Instead, pull off someplace else, get out of your car, and do some deep breathing for a few minutes.

Make your car as comfortable as possible.

Your surroundings affect your mood. So if it’s hot, crank up your AC. If it’s cool, then turn your heater on.

Realize other people sometimes make bad choices.

People talk on their cell phones, eat, and even put on makeup or shave while driving. That makes them even more dangerous to be sharing the road with, so keep your wits about you and focus on getting to where you are going.

What should I do if I encounter road rage from another driver?

If angry drivers target you, try these tips:

  1. Call 911 and request help.
  2. Drive to a nearby police station, fire station, or a hectic parking lot.
  3. Attempt to get out of the way of the other driver as safe as possible.
  4. Do not look at or acknowledge the enraged driver.
  5. Do not drive home while being actively pursued.
  6. Practice defensive driving.

Contact an Experienced Trenton Personal Injury Attorney Today

Road rage accidents are often instigated by unnecessary confrontations that are better left alone. Unfortunately, these confrontations can have devastating and deadly conclusions.  At Kamensky Cohen & Riechelson, our diligent New Jersey experienced attorneys strive to hold responsible parties accountable to the fullest extent of the law.

To schedule a confidential case assessment with our firm today, please contact our online file or through our Morristown, NJ office at (609) 528-2596.