Allocation among several employers

When an employee is totally disabled as a result of a long string of employments which cumulatively injured him, New Jersey law holds that the employer last on the risk’ pays the full freight for the claimant’s award. This doctrine, known as the ‘Bond Doctrine’ after the Court’s decision establishing it in Bond v. Blue Ribbon Co., is a common sense approach to those cases where all of the employments probably contributed to the overall disability.

In Nolan v. Kleinknecht Electric Co., A-5347-03T3, decided April 17, 2009 (not yet published as I blog this) the petitioner was a union electrician who held a long list of employments. (As a brief aside – it always seems that it is union contractors that file these types of claims because they often have dozens of employers over the years, have no personal loyalty/affinity toward any of them, and the union hall keeps a track of the employers which facilitates filing post-retirement occuputional disability claims easy-gl). Following the fashion, and nearing retireent age, Nolan filed a claim against all of his prior employers alleging that his work duties left him no permanently and totally disabled.

Unlike the typical case, Nolan actually experienced and reported an actual specific injury to his left shoulder (in 1998) and filed a claim against AMP Electric in which he recovered about $25,000 (approximately 27.5% PPT).

Nolan went back to work. eventually working for Kleinknecht Electrical in 2000. In 2001, he was told his spine was compromised and required treatment to avoid permanent effects. In September 2001 the claimant began surgical treatment for disc herniations, and never returned to work.

At Trial, the claimant presented Dr. Martin Riss (a general practitioner) who opined that “although the petitioner’s work for Kleinknecht [the “last” employer] did not involve heavy lifting or construction work, it nonetheless contributed substantially to the deterioration of his back and to his ultimate disability.” Dr. Riss described the work as “the straw that broke the camels back.”

The Judge of Compensation believed Dr. Riss and apportioned all disability against Kleinknecht, despite the fact that the claimant had received prior medical treatment for his low back while working for previous employers. In essence, the Judge of Compensation relied solely on the ‘Bond Doctrine’ and found all of the petitioner’s alleged disability was the result of the last employment.

The Appellate Court found that the reliance on ‘Bond’ was a mistake. Instead, the Court stated that “in the context of a progressive condition, the final employer ‘can no longer be held subject to the entire risk f liability for total disability when it is established by competent evidence that there is previous measurable [which then may not be total] disability.'” The Appellate Court here is citing the rule in Levas v. Midway Sheet Metal, a case I discuss at lenght in my book.

The case was remanded for proceedings consistent with the Apellate Court’s findings.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com