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September 01, 1996 9:23 AM

The nursing home industry is one of America's fastest growing industries. Today nursing homes and personal care facilities employ approximately 1.6 million workers at 21,000 work sites. By the year 2005, industry employment levels will rise to an estimated 2.4 million workers. 

According to the Bureau of Labor Statistics, in 1994 nursing and personal care facilities reported 221,200 nonfatal occupational injuries and illnesses to their personnel. Among U.S. industries with 100,000 or more nonfatal injury or illness cases, nursing homes have the third highest rate--16.8 injuries and illnesses per 100 full-time workers. Only meat products processing (at 26.5) and motor vehicle/equipment manufacturing (at 25.4) have higher incidence rates. 

Nursing home workers suffer most injuries (51.2 percent) when handling residents. Fifty-eight percent of their injuries are strains and sprains. While back injuries account for 27 percent of all injuries in the private sector, in nursing homes they account for 42 percent of all injuries. Of the 10 occupations with the largest number of injuries and illnesses, nursing aides and orderlies are exceeded only by truck drivers and nonconstruction laborers. 

The Occupational Safety and Health Administration is beginning an outreach and enforcement initiative aimed at reducing injuries and illnesses among nursing home workers. This initiative emphasizes taking a comprehensive safety and health study 

THE NJ SUPREME COURT EXPANDS WORKERS' COMPENSATION BENEFITS

In a logical leap forward after the Milios opinion, the New Jersey Supreme Court rendered a decision that leveled the playing field between the employer/insurance company and the injured worker. Consistent with the legislative mandate that medical treatment is to be directed by the employer, the New Jersey Supreme Court ruled that it stands to reason that collusion between an employer and its insurance companies at the expense of victims of industrial injuries cannot be permitted. 

Lodean Sheffield was employed by Schering Plough Corporation for twenty-three years from the early 1960's through July of 1993. As a matron cleaning bathrooms she was required to lift, bend, stoop and perform many other repetitive motion activities. Initially suffering from back problems in 1979, she received treatment for a back sprain and a disc condition. Early in 1983, her condition required surgical intervention and her employer assisted her in obtaining benefits from the short-term disability carrier, Prudential. Schering Plough's benefits department then assisted her in obtaining benefits from Travelers Insurance Company, the employer's private-plan long-term disability carrier, and encouraged her to file for Social Security disability benefits. Payment for medical treatment was provided by the employer's major medical carrier, initially Prudential and then subsequently John Hancock. 

In February of 1989 the employee filed a claim petition alleging an industrial accident at work in June of 1983 resulting in orthopedic disability to her back and a neurological condition. Travelers Insurance Company moved to join the predecessor carrier, Liberty Mutual Insurance Company. The insurance carriers raised the defense that the claim was time-barred since more than two years had expired from the date of accident and medical treatment paid for by collateral sources did not toll the statute of limitations. 

The court, while avoiding the issue as to whether or not the petitioner had "actual knowledge", focused on the issue that medical payment expressly authorized or arranged for by the employer constituted authorized medical treatment whether or not that treatment was specifically paid for by the workers' compensation insurance company. The panel held that employer authorized or directed medical treatment constituted a payment of compensation and that it was irrelevant whether the payment of medical benefits had been made by the health insurance carrier or the workers' compensation insurance carrier. The court reasoned that since the Workers' Compensation Act is remedial in nature, employees should not be lulled into a false sense of security as a result of actions of the employer. Sheffield v. Schering Plough Corporation, et al., A-84-95 (August 9, 1996). 

Delayed Notice Does Not Stop Workers' Compensation Benefits

While working in various capacities for approximately 30 years, an employee was exposed to asbestos fiber. During 1987 the employee retired. In 1988 the retired employee consulted with both a lawyer and a doctor. In November of 1989 the employee had actual knowledge that he suffered from asbestosis. In 1990, a third party products liability claim was filed against the manufacturers, distributors, and suppliers of asbestos material as a result of his asbestosis. In March of 1991, the former employee received the proceeds of the first settlement from a defendant in the third party action. On October 23, 1991, within two years after he had knowledge of his occupationally-related disease, the former employee filed a workers' compensation claim against his former employer. The court did not bar the claim even though the employee had not notified his former employer until the filing of the workers' compensation claim. The court held that where the employer was not prejudiced by the receipt of late notice and did not dispute that the disability was work connected, the employee would not be deprived of the statutory benefits. 

The court reasoned that the purpose of the notice provision of the Statute is to avoid prejudice to the employer by permitting the employer the opportunity to provide immediate medical diagnosis and treatment for the purpose of mitigating damages and to facilitate the earliest possible investigation of the factual allegations. The court held that there was no legislative intent that would be served by barring the claim of the injured worker, who suffered from a compensable occupational disease, because of failure to give timely notice to the employer. Brock v. Public Service Electric and Gas Co., 290 N.J.Super. 221, 675 A.2d 668 (App.Div.1996). 

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