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~tate of ~efu Jlersey

DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT


JON S. CORZINE PO BOX 381 DA VID 1. SOCOLOW
Governor TRENTON, NEW JERSEY 08625-0381 Commissioner

MEMORANDUM

July 26, 2007

To: All Judges and Attorneys

From: Peter J. Calderone, Director and Chief JUdge~·


Subject: Second Injury Fund Cases

The court rules under N.J.A.C. 12:235-5.1 include general procedures for the processing of Second
Injury Fund petitions. However, to provide a more uniform process throughout the State, to address a backlog
of cases in certain court locations and in consultation with the State Bar Association, Deputy Attorney
General Linda Schober and the Supervising Judges, the following measures are being implemented to
facilitate Second Injury Fund lists:

1. All Fund petitions will be reviewed by the Division staff to ensure that each petition has a total
disability medical report and listed pre-existing disabilities for which Fund benefits are sought.
Where such information is not provided, the petition will be returned and not listed. The petition
form will add a section as to any current outside employment and/or self-employment status. If
petitioner is employed, the verified petition will require additional information listing the employer
or self-employment, hours of work and work or business duties.

2. The distribution of Second Injury Fund lists will be periodically reviewed and adjusted based on
statewide need. Additionally, there is now the ability to establish lists on a temporary basis to
alleviate a backlog in a specific vicinage. An Administrative Supervisory Judge, currently Judge
Virginia Dietrich, is assigned to assist the Fund and may be contacted by supervising judges and
Fund judges for advice, information and list needs including temporary lists.

3. Due to the general inability for a Deputy Attorney General to be present on other than Fund list days,
the judge must schedule trial testimony to ensure that the Fund as a case party is represented at trials
when necessary. Therefore, the Second Injury Fund Deputy Attorney General should be present for
petitioner's testimony and every effort must be made to have petitioner's testimony taken on the
Second Injury Fund list day. After petitioner's testimony, the case may be transferred to another day
at the judge's discretion for medical or other testimony unless there is a clear need for the Deputy
Attorney General to be present for the medical testimony. For instance, such medical testimony may
be critical to the Fund where the Fund is asserting a total last accident position. Similarly, the Deputy
Attorney General must recognize the limitations on the ability to have trial testimony on Fund days
and request Fund day non-petitioner testimony only in exceptional circumstances on busy Fund lists.

New Jersey Is An Equal Opportunity Employer


-.T." ,"" .".-,

IWD DIVISION OF WORKERS' COMPENSATION


(609) 292-2515 . FAX (609) 984-2515
AD-18.14 (R 01-06)
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When medical testimony is taken on a Fund day, such testimony should be scheduled, except in
unavoidable situations, in the afternoon as to not delay the conferencing of other cases on the list.

It is the responsibility of petitioner's attorney to prepare the order and complete necessary
calculations and offsets. While the Fund Deputy Attorney General may assist in these matters as
time permits, such order completion matters should not unduly take up time at Fund conferences.
Additionally, petitioner's attorney should provide all parties with the final and complete order to be
received at least one week prior to the date of a settlement with Fund participation. It is noted that
the interactive forms allow for the e-mailing of such orders in a timely and efficient manner.

When a Fund judge continues a Second Injury Fund trial on a non-Fund day, the Fund judge is to
retain the case and schedule the continued trial on the day the respondent has a regular list in the
vicinage. If the Fund judge does not have a regular list with the respondent, the Fund judge is to
schedule the trial on the Fund judge's list on the day the respondent has a regular list in that
vicinage. This will require cooperation and time scheduling with the judge who is handling
respondent's regular list. Any unresolved issues with scheduling will be decided by the supervising
judge.

The Fund Deputy Attorney General must be noticed on any request for an adjournment. Where these
is no indication that the Fund attorney has been noticed, the judge or office staff as directed by the
judge are to notify the attorney requesting the adj ournment to immediately notice the Fund attorney
of the adjournment request.

It is also noted that all judicial computers should have an NJDWC Judicial Calculator that will
provide, among other information, social security offset and date calculations. The judge should
assist the parties by utilizing the calculator. This calculator is set for 52.14 weeks in a year.

4. With the consent of the parties, the case attorneys and when agreed and useful also the judge can
meet informally with the petitioner to address issues that may resolve the case without the need for
formal trial testimony.

5. Judges must inquire at the first conference whether petitioner is Medicare entitled and the status of
any Medicare approvals. Steps to resolve Medicare issues must be clearly established and followed.

6. The Fundjudge is to be present at Second Injury Fund conferences and take an active role to resolve
the case. Where a petitioner counsel is not prepared, the case should be rescheduled rather than have
prepared attorneys on other cases waiting. Judges should also limit a conference that becomes
unduly long and reschedule the matter for later that day or another date when there are other pending
cases for discussion.

Adj ournment requests are to be limited and granted only when clearly supported. If the adj ournment
is for an investigation (PN, RIV or BN), the matter being investigated must be listed in the case
comments section. Any adjournment request for medical examination(s) must meet the court rule
requirement that the party requesting the examination(s) provide the name of the examining
physician(s) and the date(s) of the examination(s). It is helpful to note the physician and
examination date in the case comments section.
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7. The petitioner is to be present and testify at any settlement with Second Injury Fund participation
unless there is sufficient medical verification to the satisfaction of all counsel including the Fund
attorney and the judge that the petitioner is too incapacitated to appear. In such situations, an
affidavit and/or telephone settlement process may be utilized with the approval of the judge.

8. The procedures for referral to the Division of Vocational Rehabilitation for employability
assessments and similar matters have been updated and distributed. Referrals are useful to resolve
certain cases.

9. The Deputy Attorney General for the Fund has the right to be present for disposition of settlements
with Second Injury Fund participation. The Deputy Attorney General may however based on the
circumstances agree to have a case put through without an appearance. In such situations, this
should be noted in the record.

10. When a case resolves without Fund participation, a dismissal order as to the Fund must be
completed.

Due to Second Injury Fund caseloads, we are working with this Department and the Department of
Law and Public Safety to provide additional Deputy Attorney General staffing for the Fund. Additionally,
attached please find an outline of the Second Injury Fund process prepared by Deputy Attorney General
Linda Schober.

Attachment

Note: This Memorandum will be included in the Continuing DWC Policies Manual

c: Deputy Attorney General Linda Schober


Administrator Larry Crider
Administrator Christopher Leavey
SECOND INJURY FUND
(N.J.S.A. 34:15-95 et seq.)

I. Filing of Verified Petition


A. Verified Petition
I. Include:
a. Work - employers, duties, dates
b. Income - earned/unearned (WC, SS, TDB, LTD, VA)
c. Pre-existing accidents or disabilities
d. Date of last compensable accident, resulting injuries
e. Wage/rate for last accident
f. Lawsuits - civil or workers' compensation
g. Dependents - names, dates of birth
h. Education
i. Armed Service - VA pension
j. Union membership - receipt or entitlement to benefits
2. Attach:
a. Petitioner's exams (must include report finding total disability)
b. Respondent's exams
c. Prior exams (for last or prior accidents)
d. Claim petition(s), Reopeners
e. Pre-existing medical records
f. Prior judgments, order, §20's
3. Send:
a. Original and two (2) copies to:

Office of Special Compensation Funds

POBox 399

Trenton, New Jersey 08625---D399

b. Copies to Respondent(s)
(Do not send VP or associated materials to Fund Deputy)

B. Motion to Join Fund


No longer required. Case will be listed as Fund Conference when Verified Petitioner has
been filed.

II. Conference
A. All parties must attend

B. Parties must be prepared; ifnot, attorney should request adjournment 3 days in advance with a
copy to the Fund Deputy.
1. KNOW: wage/rate, amount/weeks of temp paid, whether petitioner ever returned to work,
other incomelbenefits received.
2. Consider: FCEIDVRS, Partial Total, §20, offset rate (should not determine totality)
C. Negotiate - possible outcomes:
I. Not totally and pennanently disabled (no Fund liability)
2. Not compensable (no Fund liability)
3. Total from last accident or exposure alone (no Fund liability)
4. Total from pre-existing disability alone (no Fund liability)
5. Total from progression of pre-existing disability (no Fund liability)
6. Total from a combination of compensable events, but cannot separate into pre-existing partial
total and last/total (Fund liability after 450 weeks = 12(b»
7. Total from a combination of pre-existing disability and last compensable accident or exposure
= Fund Case
D. Split (%) between respondent(s) and Fund
E. Date of totality
F. SSA offset"
G. Pension offset
H. Third-party/Section 40 liens

III. Settlement
A. Agree to % split or 12(b), date of totality, offset, credit, liens, fees, etc.
B. If any offsets, Judge must first set fees (See Fiore v. Trident Construction Co. 251 N.J. Super. 101
(App. Div. 1991»
C. Prepare Order for Total Disability with Second Injury Fund·· and Addendum·· (if necessary)
D. Submit forms to all counsel at least I week prior to court date
E. Put through on record before Judge and with all counsel and petitioner present
F. Fund brochure given to petitioner

IV. Trial
A. If case cannot be resolved, take petitioner's testimony. Most cases can be resolved after
hearing/seeing petitioner
B. Do not bifurcate unless issue is to compensability, etc., with Fund agreement

V. Post-Judgment
A. Motion to Reopen
1. Return to work; medically improved
2. Receipt of Social Security, pension, or third-party monies; recalculate rate
3. Overpayments
B. Amended Orders

VI. Resources
Website: www.nj.gov/labor/wc/wcindex.html
•• Indicates fonns available online

09/2007