Will an employee exposed to COVID-19 (or the psychological threat of being exposed) have a claim that can be compensated under the Workers’ Compensation claim of the State of New Jersey? The answer is still unknown, but there is a possibility.  Let me explain.

The COVID-19 virus is an unprecedent pandemic, but it does have some similarities to other disability causing diseases and conditions.

In the State of New Jersey, a Workers’ Compensation claim for COVID-19 could fall under two specific categories: 1) Pulmonary disability; and/or 2) Psychiatric disability.

Pulmonary disability

New Jersey Workers’ Compensation Courts have recognized pulmonary disability claims with

diseases bearing similar characteristics to the COVID-19 virus.  For example, the courts have found compensable injuries due to death from pneumonia, ruptured aneurysm in lungs, and re-activation of tuberculosis.  (See, Dawson v. E. J. Brooks & Co., 134 N.J.L. 94, 45 A.2d 892 (1946),  Johnson v. H. Gasner, Inc., 19 N.J.Misc. 46, 17 A.2d 84 (Dept. of Labor 1940), and, Reynolds v. General Motors Corporation, 38 N.J.Super. 274, 118 A.2d 724 (Co.1955), aff’d, 40 N.J.Super. 484, 123 A.2d 555 (App.Div.1956).)

Psychiatric disability

Some employees may not necessarily suffer from a physical disability due to contracting COVID-19, but may develop a related psychiatric disorder.  For example, nurses or doctors observing the devastation that COVID-19 has on infected persons, seeing the repeated deaths, or simply being repeatedly exposed to the risk of infection can cause high levels of stress that lead to psychiatric disabilities.

Psychiatric disorders may give rise to compensation in Workers’ Compensation claims where: (a) the working conditions are objectively stressful; (b) the believable evidence supports a finding that the worker reacted to the conditions as stressful; (c) the objectively stressful working conditions are peculiar to the particular work place; (d) there is objective evidence supporting a medical opinion that there is a resulting psychiatric disability (not just the bare statement of the worker); and, (e) the workplace exposure was a material cause of the disability.

Goyden v. State Judiciary, 256 N.J.Super. 438 (App.Div.1991), aff’d o.b., 128 N.J. 54.

Public Safety Workers

New Jersey law has a special presumption for “public safety workers” who have work-related exposure to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease.”

If it is shown that the public safety worker contracted a serious communicable disease “or related illness” due to such exposure, there is a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable.

Public safety workers include: members, employees, or officers of paid, partially-paid, or volunteer fire or police departments, forces, companies or districts, including the State Police, a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.

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As the consequence of COVID-19 are you suffering from, anxiety, depression, substance abuse, sleep difficulties, PTSD or other conditions, you need to speak to an experienced lawyer.  The Law Offices of Beninato & Matrafajlo offers experienced legal advice to guide you through the process, and it does not cost you a penny to call.  Give us a call to see how we can help you.

The Basic Elements to successfully establish a Slip and Fall case in the State New Jersey Discussed

If you have fallen on someone’s premises and where injured, you may have a claim for your injuries.  In order to pursue a claim for a slip and fall accident, four legal elements of proof must be established.

The elements of proof for a slip and fall or trip and fall are:

1. Duty of Care;
2. Breach of Duty of Care;
3. Proximate Cause; and
4. Damages

Elements Explained

The Duty of Care simply means that a third-party (person or corporation) is required to prevent a foreseeable dangerous condition to exist or continue to exist unabated. For example, an organization or individual has a legal obligation to undertake appropriate steps to prevent ice, snow or water buildup on its premises.

Breach of that Duty of Care simply means that the organization is aware of a dangerous condition and fails to fix it. Using the previous example, the owner or organization breaches its duty of care by failing to remove the formation of black ice on its sidewalk or parking lot area, that it is aware exits.

The issue of awareness is not straightforward.  Routinely companies claim that it lacked Notice of the dangerous condition therefore should not be held accountable—but that defense is not absolute. For example, a supermarket should have a policy of carrying out protective sweeps of its aisles to ascertain or rule out dangerous conditions that may abruptly arise. If the supermarket fails to undertake appropriate precautions in the form of protective sweeps to look out for dangerous conditions, then it cannot claim ignorance or lack of Notice.

Proximate Cause is an element of damages that requires the injured party to establish that his/her injuries are directly related to the fall. In other words, “but for” the breach of duty of care, the injury would not have occurred.

Damages are the harms an individual suffers from the accident. Damages are limited to all the economic (money) and non-economic (pain, suffering, and loss of enjoyment of life) losses directly attributed to the fall.

Economic damages include past medical expenses, future medical expenses, past lost wages, and/or future lost wages.

Non-Economic damages include (1) pain, (2) suffering, (3) disability, (4) impairment and (5) loss of enjoyment of life. I took the liberty to enumerate each of the non-economic damages separately because each loss is and should be considered separately and not lumped together.

SLIP & FALL ACCIDENTS ANAYLZED

The term slip and fall is a catch all phrase that includes tripping and falling, sliding and falling, or dropping to the ground. Sometimes an individual may get injured by slipping or tripping without falling to the ground. The biomechanics involving fall resulting from a slip and fall verse a trip and fall are different and must NOT be overlooked by an attorney.  For example, falling headfirst to the ground, as opposed, to slipping and falling is very different.  If you slip your legs get thrown into the air and you tend to fall backwards.  As such, the difference between the method of a fall is important because the biomechanics of the fall must be consistent with the facts of the case.  An experienced lawyer must understand the different nuances of fall to prepare his client.

In the State of New Jersey most premises liability cases take place in supermarkets, parking lots, retail centers, or sidewalks.

Lastly, it seems a lot of retailers’ place profits over consumer safety by failing to undertake reasonable safety precautions to protect its consumers.

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If you’ve been injured in a slip in fall or trip in fall accident, you need to speak to an experienced trial lawyer.  The Law Offices of Beninato & Matrafajlo offers experienced legal advice to guide you through the process, and it does not cost you a penny to call. Give us a call for a free office or over the telephone consultation about your potential case.