Michael J. Dennin and Holly N. Zeitz presented a hypothetical case involving Mr. Jones, a New Jersey resident who was hired in New Jersey and injured while working in Pennsylvania. They discussed the lawyer's ethical obligations in advising Mr. Jones, including potential issues regarding competence in both states' workers' compensation systems. They also provided an overview of jurisdiction rules in New Jersey and Pennsylvania workers' compensation systems as it relates to Mr. Jones' case.

1. Michael J. Dennin
Law Offices of Vincent J. Ciecka, P.C.
Pennsauken, NJ
Philadelphia, PA
mdennin@ciecka.com
856-665-5709
www.ciecka.com
Holly N. Zeitz
Adelson, Testan, Brundo Novell & Jimenez
Philadelphia, Pa
Cherry Hill, NJ
(856) 946-1709
hollyzeitz@atblaw.net
(856) 946-1709

2. DUAL JURISDICTION ISSUES AND ETHICAL
ISSUES, DISCUSSION AND COMPARISON
OF NEW JERSEY AND PENNSYLVANIA
WORKERS’ COMPENSATION SYSTEMS
Michael J. Dennin & Holly N. Zeitz

3. HYPOTHETICAL QUESTION #1
 Mr. Jones lives in New Jersey and is hired in
New Jersey for Window Company through
his Union. He is a Union Glazer who has
worked the last months making $64.10 an
hour working 50 hour weeks at a job
constructing Big Building in Philadelphia, P.A.
 Mr. Jones is working and twists his knee
while working at this job and suffers a knee
sprain

4. HE NEEDS A LAWYER
 Mr. Jones comes to your office a week after he
is hurt because he is concerned about his injury,
treatment, and medical bills. Mr. Jones lives
down the road from your NJ office and you had
represented him in a prior legal matter.
 Mr. Jones has questions about his claim and
eligibility for workers’ compensation. He has
never been hurt at work before in either state
and has no knowledge of his rights in general.
 How do you first advise Mr. Jones?

5. WHAT ARE YOU THINKING DURING FIRST CALL OR
MEETING?
It is clear that Mr. Jones was hurt at work. He never had any prior knee
injuries. He reported the work injury to his employer immediately and an
incident report was filled out. Because he lives in NJ he was sent to work
clinic for evaluation

6. NEW JERSEY OR PENNSYLVANIA
 Before turning to substantive law, you should be aware of your ethical
obligations and the RPCs.
 Basic questions you should ask yourself.
 Are you licensed in PA and/or do you regularly handle PA cases? Do you
only handle NJ cases?
 To advise client properly, even if not handling PA or NJ cases, you
should know the law and client’s options in both states.
 You should refer the matter out if you cannot meet the ethical and legal
obligations to the client.
 What are the BASIC ETHICAL obligations to the client or prospective
client?

7. RPC’S
 THE BASIC DUTIES: COMPETENCE, COMMUNICATION AND SCOPE
 14:1 Overview.
 In representing a client, a lawyer assumes a wide variety of responsibilities. The
most basic of these are the duties:
 Represent the client competently, see RPC 1.1, to act diligently, see RPC 1.3,
 communicate information about the representation to the client. See RPC 1.4.
And see Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super. 119, 125 (App. Div.
2001), certif. den. 171 N.J. 340 (2002), stating that an "attorney's duty is to
pursue the client's interests diligently and with the highest degree of fidelity and
good faith." These duties are discussed at 14:2. In addition, RPC 1.2 requires
that
 a lawyer work closely with the client to establish the scope and objectives of the
representation (rpc 1.2). The provisions of RPC 1.2 are discussed at 14:3.
Finally,
 a lawyer may have special responsibilities when he or she represents a
corporation, or a client who is disabled by physical or mental illness. See RPCs
1.13 and 1.14. Those situations are considered at 14:4 and 14:5, respectively. Of
course,
 a lawyer's general duty under RPC 8.4(c) to refrain from dishonesty, fraud,
deceit, and misrepresentation applies to communications and dealings with
clients.

8. OVERLAP: COMPETENCE, DILIGENCE,
COMMUNICATION
 Competence: RPC 1.1: A lawyer shall not:
(a) Handle or neglect a matter entrusted to the
lawyer in such manner that the lawyer's
conduct constitutes gross negligence.
(b) Exhibit a pattern of negligence or neglect in
the lawyer's handling of legal matters
generally.

9. DIFFERS FROM MODEL RULE
 New Jersey's RPC 1.1 differs significantly
from Model Rule 1.1, also entitled
"Competence," which states,
 A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation
reasonably necessary for the representation.

10. FACT SENSITIVE
 Lawyer's competence is inherently fact-
sensitive, requiring a careful analysis of all of
the circumstances of a given representation.
See id. And see Davin, L.L.C. v. Daham, 329
N.J. Super. 54, 72 (App. Div. 2000),
observing that an attorney is "obligated to
exercise that degree of reasonable
knowledge and skill that lawyers of ordinary
ability and skill possess and exercise."

11. NUMBER OF FACTORS TO DETERMINE
COMPETENCE
 number of factors that may be relevant to any determination of a
lawyer's ability to fulfill that requirement:
 [T]here is no simple or formulaic approach to determining when
an attorney is competent to give advice in a particular situation.
Lack of direct experience in a particular legal area is not an
automatic disqualifier. Certainly if an attorney has studied and
researched an area of the law, that attorney may well be able to
give competent, even excellent advice, notwithstanding any lack
of personal direct experience in representing other clients in such
matters. In all cases, it is the responsibility of the individual
attorney, prior to offering such advice, to make a determination
whether, by some combination of education, study, reflection,
experience, research and other background, he or she is able to
proceed in a competent fashion.

12. APPLICATION
 You are going to meet with Mr. Jones now and the next
thing you think about is jurisdiction.
 Even if you do not practice in PA, under the NJ Model
Rules and the Model Rules you should know the basics of
the law or else refer it out right away. We will see later
that it can be more advantageous to the client and lawyer
if the case is referred out immediately.
 Advise client that you are only giving NJ advice and make
it clear in retainer.
 A lawyer who determines that he or she cannot perform
competently in a given situation has an affirmative duty to
decline the representation or, if it has already been
undertaken, to withdraw. See RPC 1.16(a)

13. HOW MUCH KNOWLEDGE
 Model Rules comments also note that competent
handling of a matter "includes inquiry into and
analysis of the factual and legal elements of the
problem," and that competent representation can be
provided even "in a wholly novel field" through
necessary study or through association with a more
experienced practitioner. The complexity of a matter
is also a factor in evaluating whether a lawyer is
competent to handle it. See id. And see the Supreme
Court's explanatory comment to RPC 1.1, observing,
"To achieve and maintain the necessary levels of
competence envisioned by this rule, the lawyer
should engage in continuing legal study and
education." Rules of Professional Conduct, supra, at
1.

14. DUTY TO DECLINE
 A lawyer who determines that he or she
cannot perform competently in a given
situation has an affirmative duty to decline
the representation or, if it has already been
undertaken, to withdraw. See RPC 1.16(a)
and Chapter 16. See also In re Yetman, 113
N.J. 556, 562 (1989), disciplining an attorney
in part for continuing a representation in a
matter that was beyond his or her level of
expertise.

15. NOT SAME AS MALPRACTICE
 The standard for a violation of RPC 1.1 remains, as it was
under the Disciplinary Rules, "gross negligence" or a
"pattern of negligence or neglect." The Debevoise
Committee expressed the view that these terms
encompass "deviations from professional standards which
are so far below the common understanding of those
standards as to leave no question of inadequacy."
Debevoise Committee Report, supra, at 20 (Appendix D).
The Committee also suggested that "isolated instances of
negligence do not constitute morally reprehensible
conduct" and thus do not warrant the imposition of
discipline. In such circumstances, the Committee believed
that the law of professional malpractice and the lawyer's
willingness to make good any loss would provide a
sufficient remedy for injured clients. See id.

16. SCOPE
 If taking the case or not, RPC 1.2(c): ”allows
a lawyer to limit the scope of a
representation if the limitation is reasonable
under the circumstances and the client gives
informed consent”

17. DO AT THE OUTSET!
 Language of the rule suggests that a limiting
agreement may be reached at any time
during the course of a representation;
however, the best time to define the lawyer's
specific duties may be at the outset of an
attorney-client relationship or promptly after
the circumstances suggest a limitation. In
Lerner v. Laufer, 359 N.J. Super. 201, 217-
218 (App. Div.), certif. den. 177 N.J. 223
(2003),

18. LIMITING REPRESENTATION
 Attorney must obtain the client's informed
consent to the limited representation. To ensure
that the client's consent is informed, the attorney
must disclose the possibility of increased costs
and the attorney's required withdrawal if the
negotiations do not result in a settlement of the
dispute. In addition, the attorney must advise
the prospective client of the alternatives to a
collaborative negotiation, including the more
traditional, litigation-based approach. And see
Advisory Comm. Op. 711 (July 23, 2007)

19. PENNSYLVANIA RULES OF PROFESSIONAL
CONDUCT
 Basic duties in Pennsylvania are similar to the NJ
RPCs:
 Represent the client competently which requires
legal knowledge, skill, thoroughness and
preparation reasonably necessary for
representation. RPC 1.1
 Language of PA RPC 1.1 is same as the Model
Rule.
 PA RPC 1.3 requires lawyer to act diligently and
promptly when representing a client.

20. COMMUNICATION BETWEEN ATTORNEY AND
CLIENT – RPC RULE 1.4
 PA RPC 1.4 requires that the attorney communicate information
concerning representation of the client.
 PA RPC 1.4 (b) states that a lawyer shall explain the matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation. Comment 5 addresses explanation of
matters and states “[t]he guiding principle is that the lawyer should fulfill
reasonable client expectations for information consistent with the duty to
act in the client’s best interests, and the client’s overall requirements as
to the character of representation.”
 In cases of diminished capacity, fully informing client according to this
standard may be impracticable. Rule 1.4,Comment 6.
 Where the client is an organization or group, communication is to be
made to the appropriate officials of the organization. Rule 1.4, Comment
6.

21. 1. PA RPC 1.1 COMPETENCY DEFINED
 The comments to PA RPC 1.1 provide further explanation regarding
legal knowledge and skill, thoroughness and preparation, retaining or
contracting with other lawyers and maintaining competence.
 Competent handling includes inquiry into and analysis of the factual and
legal elements of the problem, and use of methods and procedures
meeting the standards of competent practitioners. Rule 1.1, Comment
5.
 Competent handling also includes adequate preparation. The required
attention and preparation are determined in part by complexity of the
matters involved. Rule 1.1, Comment 5.
 Lawyer and client may limit the scope of the representation for which the
lawyer is responsible as long as client gives informed consent. PA RPC
1.2(c).

22. COMPETENCY CONTINUED
 Relevant factors to determine whether a lawyer
employs the requisite knowledge and skill in a
particular matter, include the relative complexity and
specialized nature of the matter, the lawyer’s general
experience, the lawyer’s training and experience in
the field in question, the preparation and study the
lawyer is able to give the matter and the feasibility for
a referral to an associate or colleague with expertise
in the area in question. In many instances, the
required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required
in some circumstances. See PA RPC R. 1.1,
Comment 1.

23. HOW MUCH KNOWLEDGE UNDER PA RPC RULE
1.1
 It is not required under PA RPC that a lawyer have special
training or prior experience to handle legal problems of a
type with which the lawyer is unfamiliar. Legal skills
including analysis of precedent, evaluation of evidence
and legal drafting, are required in all legal problems. The
most fundamental legal skill consists of determining what
kind of legal problems a situation may involve and
whether particular specialized knowledge is required.
Comment 2 provides that “[a] lawyer can provide
adequate representation in a wholly novel field through
necessary study.” Competent representation can also be
provided through guidance by a lawyer of established
competence in the field in question. PA RPC 1.1,
Comment 2.

24. RETAINING OR CONTRACTING WITH OTHER
LAWYERS UNDER PA RPC 1.1
 Lawyer must reasonably believe that the other lawyers’
services will contribute to the competent and ethical
representation of the client before lawyer retains or
contracts with lawyers outside lawyer’s own firm. PA RPC
1.1., Comment 6.
 Reasonableness regarding decision to retain or contract
with other lawyers outside lawyer’s own firm will turn on
the circumstances including education, experience, and
reputation of non-firm lawyers as well as nature of
services assigned to non-firm lawyers, legal protections,
professional conduct rules, ethical environments of the
jurisdictions involved where services will be performed
and in particular where confidential information is
involved. PA RPC 1.1, Comment 6.

25. MAINTAINING COMPETENCE
 To maintain the requisite knowledge and skill,
a lawyer should keep up with changes in the
law. This includes technology, continuing
legal education and compliance
requirements. PA RPC 1.1, Comment 8.

26. PRACTICAL TIPS:
 Learn basics of PA law (we hope this
presentation helps)
 Take basic courses in PA (Pennsylvania
Workers’ Compensation Practice and
Procedure seminar offered every two years is
highly recommended)
 Establish relationships with Pennsylvania
attorneys who you can trust to handle
referrals

27. WHAT NEXT… JURISDICTION?
 You are meeting with Mr. Jones, a first
consideration is JURISDICTION
 You should advise Mr. Jones of his rights in both
NJ or PA if you are not going to refer out PA
claim.
 Mr. Jones was hurt in PA, and his benefits are
being paid out of PA. He could have a NJ claim.
 It is very early to tell where Mr. Jones would be
better off at the end of the day.
 Let’s discuss basic rules on jurisdiction:

28. Pennsylvania Jurisdiction
 The accident occurs in PA
 The employment is principally localized in PA; or
 The employee is working under a contract of hire made in PA
but employment is not principally localized in any state; or
 The employee is working under a contract of hire made in PA
for employment principally localized in another state whose
workers’ compensation law is not applicable to the employer; or
 The employee is working under a contract of hire made in PA
for employment outside the U.S. and Canada.

29. New Jersey Jurisdiction
 The accident occurs in New Jersey
 The employment is principally localized in NJ
 The employee is working under a contract
made in NJ

30. NJ CONTACTS
 Jurisdiction for an accidental injury can be
laid in the New Jersey Division of Workers’
Compensation when:
 1. the injury occurs in New Jersey, or
 2. New Jersey is the place of contract of hire,
or
 3. the employee resides in New Jersey, and
there are some employment contacts in New
Jersey. (NJ Division Rule Book)

31. NJ OCCUPATIONAL JURISDICTION
 To exercise jurisdiction in extraterritorial
occupational disease cases, the petitioner
must show either that
 (1) there was a period of work exposure in
New Jersey that was not insubstantial,
 (2) the materials were highly toxic, or
 (3) the disease was obvious or disclosed
while working in New Jersey

32. CONTACT REQUIRED WITH NEW JERSEY
 There is no subject matter jurisdiction over
an employee of the Port Authority of New
York and New Jersey simply because the
Port Authority is a bi-state agency. There
must be some contact with New Jersey. Four
months of toxic exposure in New Jersey
during an employment of some 28 years with
the Port Authority is not sufficient to maintain
an occupational claim.

33. DUAL JURISDICTION
 There may be dual jurisdiction.
 More than one state may invoke the provisions of its
Workers’ Compensation Act.
 An injured worker may collect benefits in one state and
then chose to pursue his remedy in another.
 For example, an employer may provide medical treatment
and pay temporary total disability payments under the law
of Pennsylvania and then the employee may choose to
invoke the jurisdiction of New Jersey.
 Assuming jurisdiction is established, New Jersey may
enter an award granting benefits.
 employer is entitled to credit for benefits paid in the sister
state.

34. WHAT CONTACTS ARE REQUIRED FOR PA
 Under Section 305.2(d)(4), 77 P.S. Section 411.2(d)(4), a
person’s employment is “principally localized” in PA (1) when the
employer has place of business in PA and employee regularly
works out of that place of business, or (2) when the employee
worked at or from such place of business in PA but is required by
his/her job to leave PA for period not in excess of one year; and if
(1) or (2) do not apply, he/she is domiciled in PA and spends a
substantial part of his/her working time for employer in PA. See
also Lambie v. WCAB (Curry Lumber Co.), 736 A.2d 67 (Pa.
Cmwlth. 1999).
 Section 305.2 of the Pennsylvania Workers’ Compensation Act,
77 P.S. Section 411.2, prohibits simultaneous receipt of benefits
from Pennsylvania and another jurisdiction. However, under
Section 305.2, the employer can assert a credit for benefits paid
in another state.

35. ANOTHER HYPOTHETICAL, AND MR. JONES
 Mr. Jones is now receiving authorized treatment and is out of work.
 He is receiving TTD and the claim was not denied. He is treating with
Dr. Cureme under the direction of the PA work comp carrier for the first
90 days.
 He undergoes PT and an MRI which reveals a meniscal tear. He has
significant light duty restrictions. He is questioning if he should have
surgery and now it is past 90 days.
 You are representing the client on both the NJ and PA workers’ comp
claims. You have not filed any claim petitions.
 Another client, Ms. Smith, comes to you because she was hurt at work.

36. MS. SMITH’S CLAIM
 Ms. Smith works for wood company and travels.
 She was hired in PA but works mostly in NJ and lives
in NJ.
 Her employer mostly places her in NJ because she
lives there and on the d/a she was hurt at a work
event in Philadelphia
 She falls over a box and hurts her neck- she has a
sprain initially and is receiving therapy in NJ
 She is having problems with treatment and comes to
you to discuss her rights
 The employer accepts compensability and she is
treating.

37. MS. SMITH CONT’D
 Ms. Smith is 56 and has worked at wood company for
8 years, making 65k per year.
 She has some pre-existing low back, arm and leg
problems, as well as some prior anxiety and
depression.
 The w/c carrier is paying her based on PA
law/benefits
 She sees the company doctors for the first 90 days
 She has an MRI and spinal surgery is recommended.
 She is treating in NJ and living in NJ.
 Now you are about a year out from the date of
accident

38. MRS. SMITH- FILING CONCERNS
 There are treatment issues so you are considering filing a Motion.
The w/c carrier is denying her neck surgery as being pre-existing
 What are your options in both States? If you file in one State are
you bound by that for remainder of case?
 How should you get your client treatment while protecting their
rights in both states?
 Assume now that you are going to file a CP in NJ and a Motion
for Medical and Temporary Benefits
 You file a MMT and the carrier authorizes the surgery
 Your client has now had neck surgery and applied for SSD
 The carrier is paying med and temp, CP pending in NJ
 Let’s touch on notice generally and then the SOL for both States

39. PENNSYLVANIA NOTICE
 For injuries you must notify the employer
that you were injured within 120 days of
the occurrence/injury.
 For occupational disease claims notice
must be given within 120 days of when
the worker became aware of the relation
to work.

40. New Jersey Notice Requirement
NJSA 34:15-17. Unless knowledge be obtained, or
notice given, within ninety days after the
occurrence of the injury, no compensation shall
be allowed.
NJSA 34:15-34. 2 years after the date on which
the claimant first knew the nature of the disability
and its relation to the employment

41. Statute of Limitations
Original Claims
NJ is 2 years- however can be much longer if claimant
treated authorized (and rules differ on occupational)
PA is 3 years (rule differs on occupational)
Reopener/Reinstatement
NJ is 2 years
PA: Claimant has three years from date of decision or
agreement to file a Reinstatement. If compensation
benefits are suspended and/or modified based upon
Claimant’s ability to resume work without a wage loss,
or Claimant’s earning power of less than pre-injury
AWW, Claimant can file Reinstatement to TTD within
500 weeks.

43.  Choice of Law, a Dual Perspective
 Maximize Recovery
 Obtain Best Medical Care
 Limit Exposure
 Control Medical Care

44. BACK TO THE CASES
Ms. Smith: Mrs. Smith is completing her post
operative PT. She is released to return to work with
restrictions that do not allow her to return to her pre-
accident job.
 She is not sure if she can go back to any job
 Her SSD application is pending
 Do you proceed in NJ to obtain permanency benefits
for her? Or do you proceed in PA for wage loss
benefits? Can you do both?
 The w/c doctor IME says she can return to same job,
full duty. They stop paying her temp after MMI.

45. ARE YOU DECIDING FOREVER ON MS. SMITH
 You filed in NJ so can you still recover in PA? The answer is that the laws of
both states can apply; however you can’t collect simultaneously in both states.
Section 305.2(b) provides employer a credit for benefits paid in the other state.
 Ms. Smith was injured in PA so you can assert that PA also has jurisdiction.
 She wants to see her options regarding fighting for temp in PA versus settlement
in PA versus settlement in NJ.
 First consideration for PA is filing deadlines: Employee required to report injury
to management within 21 days to qualify for notice provisions of Pennsylvania
Workers’ Compensation Act (PA WCA). Following notice to management,
employer has 21 days to accept or deny claim.
 If no notice within 21 days, then notice has to be within 120 days of injury or
claim is time barred under PA WCA.
 There is a three year statute of limitations for the filing of a Claim Petition for an
alleged work injury. For occupational, the three years from date of diagnosis of
occupational disease.
 Mrs. Smith thinks she can return to some job, but not her old job. The job she
can return to would yield her a salary of half of what she used to make.

46. VALUE OF A CASE IN NJ
 What is potential value in NJ for her injury?
 Assume she is not totaled and range of settlement is 45-
50% of partial-total ($133,920.00 to $165,300.00 at 2013
rates).
 She will have the right to reopen her case, but she has
indicated that she had a fine surgical result and is not
interested in reopening her case. She obtains private
health coverage on her own.
 She prefers receiving a lump sum and not weekly
payments if possible.
 She attends permanency evaluations and their doctor has
15% regardless of cause for cervical spine. She is
interested in section 20. Values range from 160k – 200k.

47. VALUE OF A CASE IN PA- TTD
 Ms. Smith has a high wage and her comp rate will be the
state maximum. PA is a wage loss state.
 Generally, to calculate the Average Weekly Wage, you go
back 52 weeks preceding the work injury and divide into
four 13-week quarters. You then add up each 13-week
quarter and divide each by 13, You take the three highest
numbers and add them together and then divide that
number by 3 which gives you the AWW.
 For the year of 2015, the maximum compensation rate is
$951.00. For average weekly wage (AWW) between
$713.26 and $1,426.50, the compensation rate is 66 2/3;
for wages between $528.33 and $713.25, the
compensation rate is $475.50; and, for AWW of $528.32
and under, the compensation rate is 90% of the AWW.

48. PROCEDURE FOR FILING A CLAIM IN PA RE: MS.
SMITH
 File a Claim Petition which involves entering
your appearance on WCAIS (Workers’
Compensation Automation and Integration
System. http://www.wcais.pa.gov.
 You can either upload the petition or file it right
on WCAIS.
 Once the Claim is assigned to the designated
judge and you receive a Notice of Assignment,
Employer/Insurer must answer Claim Petition
within 20 days of date on Notice of Assignment.

49. MS. SMITH – LITIGATING A CLAIM IN PA
 Once Claim petition filed, the matter is assigned to a judge and
generally a first hearing is scheduled within 30 to 45 days
following the Notice of Assignment.
 To litigate a claim in PA, the litigation costs are higher than in NJ,
there are medical depositions and when necessary, fact-witness
depositions.
 Litigation in PA is quicker as the record should close within 180
days as each side is provided 90 days to defend their position.
 Following the closure of the record, both parties prepare briefs
and generally there is a judge’s decision within 30-60 days
following the submission of briefs.

50. MS. SMITH- MEDICAL TREATMENT/PAYMENT
ISSUES IN PA
 Claimant has control over the medical treatment in PA; however
employer/insurer can obtain an IME every six months or sooner if
an injury to a new body part or psych injury is alleged.
 Employer/Insurer can obtain an IRE after Claimant has received
104 weeks of TTD and where Claimant’s impairment rating is less
than 50% per the AMA guidelines, the employer/insurer can cap
the exposure of the claim to 500 weeks.
 Employer/Insurer is responsible for all reasonable, necessary and
causally related medical treatment. While the employer/insurer
does not have medical control, Utilization Review is used to
challenge bills regarding reasonableness and necessity.

51. BENEFITS ARE BASED UPON LOSS OF EARNING
POWER IN PA
 The following benefits are available in PA:
 Temporary Compensation Benefits: Payable under
Temporary Notice of Compensation Payable (TNCP) and
no admission of liability. Must be properly revoked within
90 days by Notice of Denial and Notice Stopping.
 Temporary Total (TTD): Total Disability
 Temporary Partial (TPD): Difference between pre-injury
AWW and post-injury wages x 2/3 and payable for 500
weeks
 Specific loss
 Death Benefits (only when fatality is work-related)
 Medical Compensation benefits (reasonable, necessary
and causally related).

52. MS. SMITH – ACCEPTANCE OF A CLAIM AND
PAYMENT OF COMPENSATION
 In PA, where a claim is accepted, the employer/insurer is obligated to
pay TTD benefits until:
 (1) Employee is fully recovered and can resume pre-injury job without
limitation; (2) Employee can return to work at wages equal to or in
excess of pre-injury wages; (2) employee recovers to the point to return
to work in some capacity; (3) an impairment rating after the expiration of
104 weeks results in a whole body impairment of less than 50% per the
AMA guidelines; (4) the employee dies due to causes unrelated to the
work injury; (5) the employee returns to work and employer suspends or
modifies by filing a Notification of Suspension or Modification within 7
days following the return to work; or (6) the parties resolve the matter by
a Compromise and Release Agreement.
 Benefits can only be stopped when the Notice of Suspension or
Modification is used properly; otherwise, a judge’s decision is required to
terminate, modify or suspend benefits or approve a Compromise and
Release Agreement.

53. MS. SMITH CONTINUED
 You believe you will be able to obtain an offer of
175k section 20 in New Jersey to settle the case
 SSD application/appeal is pending
 In NJ do you need a set-aside because it is over
25k and she has possibility of being Medicare
eligible? YES you do. You hope to get a Zero
Set Aside because she is not on any meds or tx
and none is recommended
 Question is what benefits are available in PA?

54. MS. SMITH PA SETTLEMENT
 Depending on where she is in litigation, should she proceed in PA
to try and get a larger lump sum?
 Does she dismiss her NJ claim?
 Can she get lump sums in both PA and NJ?
 Case specific and Court specific
 Not allowed to duplicate benefits
 You will need to decide if you should pursue PA and what
settlement you could reach in PA (vast majority of lump sum
settlements in PA are under 250k
 Set Aside not required in PA unless Claimant has a reasonable
expectation of Medicare enrollment within 30 months of date of
settlement and total settlement for medical and indemnity is over
250k OR if Claimant is currently Medicare-eligible, and the total
settlement is greater than $25k

55. Choice Based on Medical Care
 NJ has Doctors selected by the Carrier.
 Petitioners may perceive some doctors as good and some
may not be as good.
 PA greater flexibility in choice; however the
employer/insurer can and will use independent medical
evaluations and the Utilization Review process.
Claimant’s choice of doctor can result in some doctors that
are good and some doctors that may not be as good.
 ADVANTAGE GENERALLY PENNSYLVANIA

56. Temporary Disability
NJ has lower TTD weekly rates
NJ has 400 week maximum TTD period
NJ has no light duty and no partial disability concept
NJ TTD always terminates at MMI
PA has higher rates and AWW will include concurrent
employment where disabled from both jobs
PA has partial disability
PA does not always stop TTD at MMI
ADVANTAGE PENNSYLVANIA

57. MR. JONES UPDATE
 Mr. Jones (knee) has surgery to repair his meniscus, and is undergoing
PT and out of work on TTD.
 The knee surgery and it is partially successful. He has permanent
restrictions on his right leg of no kneeling more than 10 minutes, no
lifting over 40 lbs and no ladders or excessive climbing
 Mr. Jones is released from his doctors at MMI and has permanent
restrictions. He calls his employer who does not want to take him back
unless he is 100%
 Mr. Jones can no longer perform his job as a Union Glazer and is 32
years old. He has to find a different or light line of work
 Mr. Jones is still being paid TTD out of PA. He is eager to work some
sort of job and resolve his case.

58. WHAT ARE MR. JONES’ OPTIONS IN NJ?
 Mr. Jones could have either a NJ case or a PA case.
He has permanent damage to his knee.
 What is value of his NJ case? 17.5-27.5 of his right leg,
at 2014 rates ranges from $12,403.12 to $19,136.25.
 He would have the right to reopen his case.
 He could most likely be compensated within eight
months in NJ.

59. WHAT ARE MR. JONES’ OPTIONS IN PA
 In PA, Mr. Jones could mediate the case. In PA, the presiding
judge generally does not mediate the case.
 If the parties resolve the matter by compromise and release
agreement (CRA), there is a full and final settlement.
 In PA, the parties can settle all workers’ compensation benefits
including wage loss, medical and specific loss as well as
penalties and attorneys’ fees.
 The Workers’ Compensation Judge (WCJ) has to approve the
CRA.
 WCJ is to determine that claimant understands the “legal
significance” of the agreement. WCJ does not determine if
settlement is in the best interest of the claimant. Also required is
that the CRA be explicit regarding payment of reasonable,
necessary and related medical expenses. CRA will not be
considered unless vocational evaluation by qualified vocational
expert completed or waived by employee.

60. SHOULD HE PROCEED IN PA?
 W/C has to continue to pay Mr. Jones while he cannot find work (PA
wage loss state).
 Mr. Jones has looked for other work and is unable to locate any work.
 Mr. Jones’ workers’ compensation carrier can send him for an IME every
six months. If full duty release or partial duty release, employer/insurer
can file a petition to terminate, suspend or modify.
 Employer/Insurer could initiate a Labor Market Survey to leverage the
case for settlement.
 Employer/Insurer could proceed with an IRE after 104 weeks to leverage
the case for settlement.
 In PA, employer/insurer cannot unilaterally stop payments unless
Notification of Suspension or Modification properly filed.
 After litigating the case, Mr. Jones’ compensation continues until there is
a judicial determination either interlocutory or final.
 When he returns to work with partial loss of earnings, benefits are
payable at 2/3 rate of the difference between AWW and new wages.

61. JOB AVAILABILITY AND VALUE OF CASE
 Any time medical evidence establishes employee can return to work in
some capacity, employer must issue a Notice of Ability to Return to
Work. Not required if Claim Petition not yet filed. Additionally, if the
employer has a specific job vacancy within employee’s capabilities,
employer must offer job to claimant.
 Where there is no specific job vacancy with pre-injury employer,
employer/insurer may initiate a labor market survey. Vocational expert
shows available work generally available in usual employment area.
 Value of case based on loss of earnings since PA is a wage loss state
i.e. whether claimant is partially to totally disabled. In order to modify or
suspend, need to show earning power through work availability or
earning power assessment.
 In negotiating case, value case in terms of annual exposure (earning
power of total v. partial disability).
 Mediation can be a useful tool for resolution.

62. DO YOU PURSUE IN PA OR NJ?
 You know the value of the NJ claim.
 What is the value of PA claim and how is it
calculated? Example as follows:
 Prior to his accident he was making more than
$3,200.00 per week before taxes,
 He was working for All Glass Co. for five months
at approximately 50 hours per week at $64.10
per hour for total gross earnings of $3,205.00
per week. He is receiving $888 per week in TTD
which is the maximum compensation rate for
the year 2012.

63. PURSUE IN PA? VALUE?
 Assume Mrs. Jones can work in a job only earning $10.00 per
hour, 40 hours per week netting $400.00 per week,
 When calculating the benefit rate for partial disability, the
calculation is 2/3 the difference between the pre-injury AWW and
earning power post-injury. Based upon the AWW of $3,205 and
post-injury wages of $400, subtracting 400 from $3,205 yield,
2,805. When you multiply 2/3 by $2,805, you arrive at $1,870,
which is in excess of $888. Therefore, employee would still be
receiving $888 per week, which is the maximum compensation
rate. You could make the argument that the indemnity would be
characterized as TPD and would be capped at 500 weeks.
 Since his pre-injury AWW is so high, it is unlikely that
employer/insurer could reduce Mr. Jones disability benefits from
$888 per week.

64. PA CONTINUING WAGE CALCULATION
 He is receiving $888.00 per week in TTD which is the
maximum rate for 2012.
 Thus, he would need to earn $2,250 per week post-
injury in order to reduce his benefits to $636.67 per
week.
 Taking into consideration his pre-injury AWW of
$3,205 (with overtime), employer would have to
establish earning power of $45 per hour, 50 hours per
week, to only obtain a slight reduction in indemnity
payments. Employer would have to establish
vocational suitability taking into consideration, among
other things, Mr. Jones’ education, training, age, and
experience.

65. CAN MR. JONES MAKE THE SAME MONEY?
 Mr. Jones’ pre-injury job was highly specialized
and he was a high wage earner. It will be very
challenging for Mr. Jones to find a job post-
injury with wages equal to or in excess of his
pre-injury AWW.
 His specialty is commercial glazing. Even with
re-training, it is unlikely he could find
employment post-injury with similar
compensation.
 Thus, the value of the case then will be
assessed based upon earning power, i.e. how
many weeks of compensation, coupled with
future medical costs.

66. FUTURE MEDICAL CONSIDERATIONS
 Mr. Jones has been recommended to
undergo injections every six months
 He has permanent restrictions and will be
unable to do his work as a commercial
glazer.
 A special life-long need for these injections
would prevent the petitioner from continuing
to work at a stable job as he would miss work
for several days both before and after the
injections for the injections to be effective.

67. HOW TO CALCULATE DEMAND?
 In Pennsylvania employer/insurer can request that employee
submit to an Impairment Rating Evaluation (IRE) following
employee’s receipt of 104 weeks of TTD.
 Carrier has paid close to 10 months in temporary disability
benefits at $888.00 per week. They would pay another 14
months or close to $50,000 exposure in temporary benefits
before the IRE is performed.
 Where IRE properly requested within 60 days after date
employee has received 104 weeks of TTD and IRE establishes
impairment rating of less than 50% under the AMA Guides,
employer/insurer can modify employee’s benefits from partial to
total and cap exposure to 500 weeks at the TTD rate of $888.00
per week.
 Thus, the additional exposure is $444,000.00 after the IRE, and
$50,000.00 before the IRE is done.
 Assuming the payment of TTD up until the IRE and payment of
TTD for 500 weeks, the estimated exposure is $500,000.00.

68. WORK LIFE EXPECTANCY AND FUTURE MEDS
 Mr. Jones was 45 years old at the time of the
accident.
 He had expected to continue working for another 25-
30 years assuming that he would retire between age
70-75.
 Even if you assume that he would stop working at 65
that he has 20 years of employment ahead of him.
 Assuming the medical cost for the injections is
$5,000.00 per injection, that Mr. Jones requires two
injections per year, this resulted in an annual medical
cost of $10,000 and a projected 20-year cost of
$200,000.

69. DEMAND
 You intend on making a 500k settlement
demand via a Compromise and Release
Agreement to include both medical and
indemnity.
 Client wants to settle case quickly, and the
carrier offers Mediation with a Pennsylvania
Workers’ Compensation Judge.
 You agree to Mediate the case

70. Permanent Partial Disability
NJ yes schedule award even if able to RTW at pre-
accident wage.
Pa no schedule award or wage benefit if able to
RTW at pre-accident wage.
ADVANTAGE NEW JERSEY

71. Permanent Partial Disability
NJ yes schedule award even if NOT able to RTW at
pre- accident wage.
Pa wage replacement benefit continues if NOT able
to RTW at pre-accident wage.
ADVANTAGE NONE, CASE SPECIFIC

72. Permanent Total Disability
NJ benefits for life. Social Security offset until age
62 taken by the carrier. Social Security may offset
from 62 to 65. No offset after age 65.
PA benefits for life. Social Security takes offset.
After age 65 (or full retirement age) offset is taken by
carrier.
ADVANTAGE NEW JERSEY

73. CONTESTED CLAIM RESOLUTION
NEW JERSEY
Section 20 Dismissal
Full or partial dismissal
Denied claims
Denied permanency
Denied causal relationship
Must be approved by Court as fair
Routinely frowned upon by newer Judges

74. CONTESTED CLAIM RESOLUTION
PENNSYLVANIA
Compromise and Release
Full or partial dismissal
Denied claims
Denied permanency
Denied causal relationship
No real basis for a Judge to deny approval
unless petitioner does not understand

75. CONTESTED CLAIM RESOLUTION
In PA, the settlements that compromise
indemnity and medical are full and final.
There is no permanency benefit and no
reopener rights.
In NJ, by settling the case by an OAS,
you have reopener rights.

76. ETHICS: SETTLEMENT…CLIENT CHANGES MIND
 Achieving settlements is not always easy,
particularly when the issues are complex.
 Under NJ RPC 1.2(a), the client holds ultimate
authority over whether and how to settle.
However, under NJ RPC 1.4(c) the lawyer is
obligated to explain the issues and relevant
settlement strategies to the client “to the extent
reasonably necessary to permit the client to
make informed decisions” regarding settlement.
 Assume client agrees to settlement amount,
then changes his mind

77. UNHAPPY CLIENT- NULLIFY SETTLEMENT?
 Client’s reasons for rejecting a settlement boil down to
dissatisfaction with some aspect of the lawyer’s
representation.
 Inferior representation by the lawyer is not likely to result
in nullification of the settlement.
 It is likely, however, to produce a malpractice claim
against the lawyer. If the lawyer is aware that malpractice
has occurred, the lawyer certainly ought not to try to
represent the client any further.
 Indeed, the lawyer would have an affirmative obligation to
disclose the malpractice to the client. RPC 1.4(b),
1.7(b)(2) and Circle Chevrolet v. Giordano, Halleran and
Ciesla, 142 N.J. 280, 291-292 (1995).

78. ESTOPPEL AND UNDERSTANDING
 When clients change their minds after settling and
sue their lawyers for malpractice, a common defense
is judicial estoppel (sometimes referred to as the
doctrine of issue preclusion).
 This defense reasons that once a client goes on the
record, expresses under oath an understanding of the
terms of a settlement and acknowledges that he or
she is freely and voluntarily agreeing to those terms
and considers them fair, then the client may not later
attack the adequacy of the lawyer’s representation in
achieving the settlement.

79. CASELAW
 Two New Jersey Supreme Court opinions in this area
of law, Ziegelheim v. Apollo, 128 N.J. 250 (1992) and
Puder v. Buechel, 183 N.J. 428 (2005).
 Ziegelheim and Puder both involved malpractice
claims arising from divorce case settlements where
the clients changed their minds.
 In both instances the trial courts dismissed the clients’
malpractice claims on motion.
 In Puder the Supreme Court affirmed the dismissal
but in Ziegelheim, it reversed, remanding the case for
trial of the client’s malpractice claims. (plus Guido
case)

80. LESSON ONE: CLIENT REMORSE
 “Client remorse” is preventable in many instances if the
lawyer thoroughly prepares both the case and the client.
 For example, in Newell v. Hudson, 376 N.J. Super. 29
(App. Div. 2005), the lawyer’s client was hoping for
permanent alimony in the context of a relatively short
marriage.
 Before the mandatory settlement conference, the lawyer
had the client read Crews v. Crews, 164 N.J. 11(2000)
where the Supreme Court clearly explained the
prerequisite for alternate forms of alimony. As an
accountant, she was competent to understand what she
read.
 The Newell court cited this as a reason to support
estoppel of her malpractice claim.

81. LESSON TWO: WRITING AND RECORD
 Lawyers should be thorough in questioning their
clients when settlements are placed upon the court
record.
 As noted in Ziegelheim, if possible counsel should
promptly reduce settlement terms to writing for their
client to read, enabling the clients to better
understand the terms before going before the judge.
 Then, under oath, the clients should not only be
asked whether they understand the terms and agree
to them, but whether they consider the terms to be
fair (given the fact that the terms reflect somewhat of
a compromise).
 Finally, in addition to the usual “freely and voluntarily”
questions

82. MORE QUESTIONING
 Clients could be asked whether they have
been represented by present counsel
throughout the litigation and whether they are
satisfied with that representation.
 (Such self-serving questions may not
produce binding answers in cases of serious
malpractice, but may help minimize claims in
borderline cases.)

83. PRACTICE TIPS
 Confirm discussions in writing and terms of
settlement
 Certified mail when necessary
 Have client sign off on settlement agreement way
ahead of hearing so they have enough time if they
want to back out
 Ask client on stand if they are happy with your
representation, had enough time to think, are
voluntarily settling case, any more questions of
attorney, all questions answers, had enough time to
think about settlement, understand rights in both
states if applicable.

84. MR. JONES PA MEDIATION
 You mediate case, case resolves for
$245,000.00. Carrier pays all costs, client
pays 20% counsel fee
 Client nets $196,000.00 after fees
 Fees are $49,000.00
 Enter Compromise and Release on the
Record in Philadelphia Workers’
Compensation Court. Judge approves the
settlement.

85. PA V. NJ
 In PA your client nets 196k
 In NJ your client nets $17,500.00 and has right
to reopen case but has no intent on reopening
 Differential of $178,500.00 in money to the client
 Differential of $45,500.00 fee to you
 If you handled this case solely as a NJ w/c
case, did you service your client appropriately?
 Did you commit malpractice? Did you violate
ethical rules and RPCs?

86. PRACTICE POINTERS
 Even if you referred the case out and received 1/3rd back
from PA counsel, or knowledgeable PA licenses lawyer in
NJ, you would receive fee of $16,333.33 as opposed to
$3,500.00
 If you do not know PA law or cannot learn PA law quickly
and appropriately, REFER THE CASE OUT
IMMEDIATELY
 Establish relationships with lawyers in both states that
you can trust
 Explain to the client up front what his or her options are in
writing
 Be prepared to try the case in PA if necessary and
advance costs to try case
 Have client sign retainers for both states.

87. MS. JONES- ENOUGH TIME?
 Back to Mrs. Smith. We likely do not have
enough time to finish her hypo
 You can see from Mr. Jones that it may be in her
best interest to proceed in PA
 Considerations are her work life expectancy,
future medical needs, value of future temp
 Her wages and rate, and any permanent
restrictions
 Depending on all factors advise client in writing
of the options and pros/cons

88. Michael J. Dennin
Law Offices of Vincent J. Ciecka, P.C.
Pennsauken, NJ
Philadelphia, PA
mdennin@ciecka.com
856-665-5709
www.ciecka.com
Holly N. Zeitz
Adelson, Testan, Brundo Novell & Jimenez
Philadelphia, Pa
Cherry Hill, NJ
(856) 946-1709
hollyzeitz@atblaw.net