12 Cooper Levenson Attorneys named to NJ Super Lawyers and Rising Star lists

Atlantic City, N.J. — March 15, 2017 — Cooper Levenson partners Lewis B. April, William S. Donio, Randolph C. Lafferty, Lloyd D. Levenson, Russell L. Lichtenstein, Ronald G. Lieberman, and Jill T. Ojserkis were named to the 2017 New Jersey Super Lawyers list, a designation awarded to just 5 percent of the lawyers in the state.

In addition, Amy Houck Elco, Peter Fu, Rebecca Lafferty, Amy E. Rudley and Michael L. Salad were named to the 2017 New Jersey Rising Stars list. This designation is given to less than 2.5 percent of New Jersey attorneys who are 40 years old or younger, or who have been practicing for 10 years or less.

“These attorneys consistently hold themselves to the highest professional standards,” said Kenneth J. Calemmo, Jr., chief operating officer, Cooper Levenson. “We applaud the hard work and skill that helped earn them this designation.”

The Cooper Levenson attorneys named to the 2017 New Jersey Super Lawyers list are:

Lewis B. April, a founding member of Cooper Levenson and partner in the Personal Injury practice group. April is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney. He is rated AV Preeminent by Martindale-Hubbell in Personal Injury Litigation and Negligence Trial Practice. April resides in Margate.

William S. Donio is the chair of the Education Law practice group, representing New Jersey school districts in special education matters, discrimination claims of all types, construction matters, open public records claims and more. Donio is an adjunct professor at Rutgers School of Law – Camden, and a faculty member of the SRI-ETTC at Stockton University. Donio resides in Hammonton.

Randolph C. Lafferty is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney. He practices in the areas of civil, commercial and general litigation, personal injury, governmental law and insurance litigation. Lafferty has been included on the New Jersey Super Lawyers list each year since 2006. Lafferty is rated AV Preeminent by Martindale-Hubbell in Personal Injury and General Litigation. He resides in Mays Landing.

Lloyd D. Levenson is chief executive officer of Cooper Levenson and chair of its Casino and iGaming Law practice group. Levenson and the attorneys in his gaming practice group are at the forefront of the newest developments in online or Internet gaming (iGaming) law, sports wagering legal matters, mobile gaming matters, and more. Levenson is rated AV Preeminent by Martindale-Hubbell in Casino and Gaming Law. Levenson resides in Margate.

Russell L. Lichtenstein, is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney, a partner in the firm, and chair of the Employment & Labor and Hospitality & Casino Industry Defense Litigation practice groups. 2017 marks the 13th consecutive year that Lichtenstein has been selected to the New Jersey Super Lawyer list. Lichtenstein is rated AV Preeminent by Martindale-Hubbell in Labor Law, Employment Law and Litigation. Lichtenstein resides in Beesley’s Point, Upper Township.

Ronald G. Lieberman is a partner and chair of the Family Law Practice. He is Certified as a Matrimonial Law Attorney by the Supreme Court of New Jersey, has been admitted as a Fellow of the American Academy of Matrimonial Lawyers, and is certified by the National Board of Trial Advocacy as a Family Law Trial Lawyer. Lieberman is rated AV Preeminent by Martindale-Hubbell in Family Law. Lieberman resides in Cherry Hill.

Jill T. Ojserkis is a partner in the firm and chair of the Healthcare Law practice group. She represents hospitals, health systems, medical staffs and health information organizations in a variety of matters. Jill is rated AV Preeminent by Martindale-Hubbell in Health Law and Tax Law. Ojserkis resides in Linwood.

The Cooper Levenson attorneys named to the 2017 New Jersey Rising Star list are:

Amy Houck Elco is a partner in the firm’s Education Law Practice Group. She provides educators with training on new laws and requirements, policies and procedures development, and more. A frequent lecturer, Elco presents on staff rights and responsibilities, student discipline, harassment, intimidation and bullying, special education matters, and board ethics. Elco resides in Mullica Township.

Peter Y. Fu is an associate in the Business & Tax and Cyber Risk Management practice groups. Fu’s practice centers around estate and tax planning; corporate best practices, and developing risk reduction tools for online service providers, sales and local tax matters in a number of U.S. states, and value added taxes for international businesses. Fu resides in Atlantic City.

Rebecca C. Lafferty is an associate in the firm and a member of Cooper Levenson’s Land Use and Governmental Services practice groups. She is based in the firm’s Atlantic City office and focuses her practice on planning, development and zoning as well as business and commercial litigation of every type. Lafferty resides in Mays Landing.

Amy E. Rudley is a partner in the firm. Amy focuses on employment law, casino law, defense litigation, and provides day-to-day employment counseling for a variety of clients. This year marks the 5th consecutive year that Rudley has been selected for inclusion on the Super Lawyers Rising Star list. Rudley resides in Pitman.

Michael L. Salad is an associate in the Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on business transactions, tax matters, and estate and business planning, including cyber risk management issues and management plans. Salad holds an LL.M. in Estate Planning and Elder Law.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. For more information about Super Lawyers, visit SuperLawyers.com.

Legal Ethics Of Email Seminar

December 14 in Atlantic City and December 15 in Cherry Hill, N.J.

Atlantic City, N.J. December 1, 2015 -Attorneys, paralegals and other professionals interested in learning about the ethical questions surrounding email may attend a half-day seminar hosted by the National Business Institute. The seminar will be held on Monday, December 14, 2015 from 8:45 a.m. to 12 noon at the Sheraton Atlantic City Convention Center Hotel, 2 Convention Blvd., Atlantic City, N.J. The seminar will be repeated on Tuesday, December 15, 2015 from 8:45 a.m. to 12 noon at the Holiday Inn Cherry Hill, 2175 Marlton Pike, Cherry Hill, N.J.

Frederic L. Shenkman, partner with Cooper Levenson, P.A., is one of three presenters who will discuss the ethical challenges of email, including privacy concerns, data security, and inadvertent disclosure. Some of the questions to be addressed include, “Is email protected under the 4thamendment?” and “Does the email you delete really disappear?” The presenters will share tips, risks and best practices, including practical guidance and tools for ethical compliance.

Shenkman has decades of experience in both transactional work and commercial litigation. He has lectured extensively on general equity and attorney ethics to various bar associations and Inns of Court. He served as chairperson and as secretary of District 1 of the New Jersey District Ethics Committee.

Cost for the seminar is $239. Participants receive Continuing Legal Education Credits valid in New Jersey, New York and Pennsylvania. For more information on the Atlantic City seminar, visit http://bit.ly/1I1K2ys. For more information on the Cherry Hill seminar, visit http://bit.ly/1Hd1yj2.

Cooper Levenson is a full service law firm since 1957, with 75 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm has regional offices in Bear, Del., and Las Vegas. For more information, visit www.cooperlevenson.com.

Re-inventing Atlantic City

In Louis Malle’s classic 1980 film, Atlantic City, Burt Lancaster’s character stares wistfully out from the Boardwalk. “You should have seen the Atlantic Ocean in those days.” The response he gets is a quizzical look. After all, the ocean is always the ocean. Right?

Maybe, but Atlantic City is not always Atlantic City. It changes -as most cities do – from periods of growth and prosperity to periods of despair and problems. As Michael Pollock, author of “Hostage to Fortune: Atlantic City and Casino Gambling, often notes: “With Atlantic City, the lurches from euphoria to despair simply occur more frequently, and the best metaphor for Atlantic City is that of a Boardwalk roller coaster. How the city looks depends on when you open your eyes during that ride.”

That 1980 Louis Malle snapshot was taken just after the grand urban “experiment” with casinos had begun, and Atlantic City was a different type of metaphor. It was a place for reinvention. We all know how the story of Atlantic City evolved from there: Prosperity in the early 1980s, followed by despair in the late 1980s, followed by prosperity in the mid-1990s, followed by . you get the picture.

As this column is being written, the sun is shining, the sky is blue, and the Boardwalk is filled with visitors who have both time and money to spend. Atlantic City appears to be emerging from a period of deep despair, as the remaining casinos are showing growth, and a number of non-gaming investments are being opened, planned or considered. Such projects range from capital investment in Boardwalk Hall to a proposed waterpark complex at the shuttered Atlantic Club to the newly opened, still-expanding Playground (formerly The Pier at Caesars) and other attractions.

This is clearly a period of optimism, but does that mean the Atlantic City pendulum is swinging back toward a period of euphoria? In part, yes, because Atlantic City is slowly but surely leveraging its natural attractions – the beach, Boardwalk and tourism infrastructure – and growing less dependent on its core industry: casino gambling, which is by definition a risky foundation since it is so easy for other markets to emulate.

Those of us who live and work in this important market recognize that prosperity cannot be built on a foundation of a legal monopoly, with hopes that are pinned on maintaining that monopoly. Atlantic City’s old business model of being the most convenient place to gamble is a mode that is metaphorically (and somewhat literally) built on sand.

Atlantic City’s future is as an entertainment center, and if that sounds suspiciously like its past, so be it. The city needs more capital investment, but it needs something else as well: longer season.

I suggest you heed the words of Steve Norton, a venerable observer of gaming who played an instrumental role in building Atlantic City when he served as Executive Vice President of Resorts International, back in the 1970s. He recently wrote: “These new additions are great for Atlantic City, but they will still attract most customers during the summer months and on Fall and Spring weekends. Vegas has changed from 70 to 80% dependence on casino win, to a very balanced revenue mix, where casino win only represents 35% to 40% of most resort casino revenue.”

Norton suggests – and I wholeheartedly endorse – a further emphasis in Atlantic City on conventions and meetings, further emulating the Las Vegas model.

Norton further writes: “That market is even more perfect for Atlantic City, because the meetings market primarily plan their events during the Fall, Winter and Spring, and almost exclusively mid-week. And since the attendees are attending a work event, they are getting paid, and their travel, accommodation and meals paid for by their employers. We have the first class hotels, a variety of quality dining and entertainment venues; but Atlantic City lacks first class transportation. And taking a bus from Philadelphia International is not an acceptable solution, especially when we have a first-class airport 9 miles away. Air service is the major missing ingredient, to create a smaller version of Las Vegas right here in South Jersey.”

Las Vegas in South Jersey. Does that sound familiar? It should. That is what New Jersey tried to do when it legalized casinos in Atlantic City, but here is the real lesson from Las Vegas: When times get tough, reinvent yourself.

Louis Malle got it right. The Susan Sarandon character in his movie tries to reinvent herself, and indeed the entire film is a metaphor for reinvention and starting anew. Bruce Springsteen also got it right, with these lyrics:

“Everything dies baby that’s a fact. But maybe everything that dies someday comes back. Put your makeup on fix your hair up pretty and meet me tonight in Atlantic City.”

You don’t need to recite lyrics or see movies to know that Atlantic City is all about reinventing itself, and coming back.

Lloyd D. Levenson is Chief Executive Officer of the Atlantic City-based law firm Cooper Levenson and Chairman of the firm’s Casino Law Practice Groups in Atlantic City, Las Vegas and Harrisburg, Pennsylvania (www.cooperlevenson.com). Mr. Levenson can be reached at (609)344-3161 or by e-mail at ldlevenson@cooperlevenson.com.

Cooper Levenson, Attorneys At Law Welcomes New Partner Nicholas J. Sansone

CHERRY HILL, N.J. – Cooper Levenson is pleased to welcome Nicholas J. Sansone as a new partner in the firm.  Sansone, based in the Cherry Hill office, concentrates his practice on matters involving premises liability, motor vehicle claims, commercial liability, construction defect claims and discrimination.

“We are very happy to welcome Nick to Cooper Levenson. His significant experience and depth of knowledge will be an asset to our Defense Litigation team,” said Kenneth  J. Calemmo, Jr., Chief Operating Officer.

Sansone’s clients include public entities, self-insureds, and insurance carriers. He has extensive trial experience throughout New Jersey and Pennsylvania, has obtained numerous defense verdicts, and has been a key figure in establishing the laws in regard to arbitration conduct at the appellate level in Pennsylvania.

Sansone is a member of the Burlington County, Camden County, Philadelphia, Pennsylvania and American Bar Associations, as well as the Justinian Society. His community efforts include: his role as President of Chestnut Hill West’s ice hockey program and his position as a board member for the South Jersey Ice Hockey League.

Sansone, a resident of Cherry Hill, earned his Bachelor of Arts magna cum laude from Temple University in 1988, and he received his Juris Doctorate from Villanova University School of Law in 1991.

Cooper Levenson is a full service law firm since 1957, with 75 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm has regional offices in Bear, Del., Harrisburg, Pa., and Las Vegas.

Real Estate Valuation Methodology

Once the highest and best use for real estate is established, the various methodologies for valuing improved property can be utilized.

The easiest method to understand is the sales comparison approach a/k/a the comparable sales approach. In this method, value is established by analyzing sales, listings or pending sales of properties that are similar to the subject property.

In the sales comparison approach, an opinion of value is developed by comparing properties similar to the subject property that have recently sold, are listed for sale or are under contract. Obviously, the highest and best use of a property is relevant because the sales comparison method works best when the properties being compared have the same or similar highest and best uses.

The sales comparison approach is applicable to all types of transactions when there are sufficient, recent, reliable transactions to indicate value patterns or trends in the market. This, however, is predicated upon the existence of a market. If, for example, a piece of property has a court building constructed on it there may be no market for its sale; the market would be for the vacant land, utilized in another fashion, less demolition costs. Therefore, the sales comparison approach works best for owner-occupied properties not for properties that are purchased for their income producing qualities.

The next method for appraising improvements is the cost approach. This involves the theoretical breakdown of property into land and building components. It is theoretical because buyers purchase rights not land and buildings. This creates issues that are not applicable in the sales comparison approach or the income approach. As an example, external obsolescence is an issue for the cost approach but not for the sales comparison or income approaches.

In the cost approach an analysis is performed of the cost of the improvements by comparison to the costs to develop similar improvements as evidenced by the cost of construction of substitute properties with the same utility as the subject property. The estimate of development cost is adjusted for losses in value caused by age, condition, utility and location. Then the value of the land (assessed by other methods not discussed herein) is added.

The cost approach is an analysis of the market’s perception of the difference between the property being valued and a newly constructed building with optimal utility. The appraiser must consistently distinguish between two costs bases: reproduction costs (an exact replica of the property) or replacement costs (a property of similar size and utility).

The costs to construct the existing structure and site improvements (including hard costs, soft costs and entrepreneurial profit) use three techniques: (1) comparative unit method; (2) unit in place method; or (3) quantity survey method.

The comparative unit method is used to derive a cost estimate in terms of dollars per unit or area or volume based on known cots of similar structures that are adjusted for time and physical differences usually applied to the total building site. Contract prices are usually employed to determine the comparative unit method, i.e. $20/s.f. In the absence of contract prices the total cost of a building can be extracted from sales of similar building as long as the following are met: (1) the improvements reflect the highest and best use of the property; (2) the property has reached stabilization; (3) supply and demand are in balance; and (4) the site value can be reasonably ascertained.

The unit in place method a/k/a segregated cost method arrives at the cost of a property by adding together the unit costs for the various building components as installed, i.e. excavation, foundation, etc.

The quantity survey method is the most comprehensive and accurate method of cost estimating. A quantity survey reflects the quantity and quality of all materials used in the construction of improvement and all categories of labor required. Then contingencies are added for overhead and profit.

From the costs are deducted all depreciation in the property improvements as of the valuation date. Depreciation is established by one or more of the following: (1) market extraction method; (2) economic age-life method; or (3) breakdown methods.

The market extraction method relies on the availability of comparable sales from which depreciation can be extracted.

The economic age-life method is a ratio of the effective age of the property in comparison to its expected economic life and then applying this ratio to the property’s costs. The formula is (Effective Age/Total Economic Life) x Total Cost = Depreciation.

The breakdown method is the most comprehensive and detailed way to measure depreciation because it differentiates depreciation into its component parts: (1) physical deterioration; (2) functional obsolescence; and (3) external obsolescence.

Functional obsolescence is relevant when a property lacks something that other properties have in the market such as air conditioning or elevators. There is also something known as a super-adequacy which is a type of functional obsolescence caused by something in the property that exceeds market requirements but does not contribute an amount equal to its cost. As a simple example, imagine a pool being installed in a residence for $25,000.00. The pool may not increase the value of the house by $25,000.00 and may decrease the value of the house because many owners don’t want to assume the liability imposed by a pool.

External obsolescence is a loss in value caused by an external factor such as an over-supplied market, proximity to an environmental disaster, being located in a neighborhood that would not encourage use of the property, etc.

When the value of the land is added to the cost of the improvements less depreciation the result is the value of the fee simple interest in the real estate.

The third method for valuing real estate is the income capitalization approach. An investor who purchases income-producing property is essentially trading current dollars in expectation of receiving future dollars. The income approach is used to analyze a property’s capacity to generate monetary benefits of income and reversion into an indication of present value.

There are two principle methods for employing the income capitalization approach: (1) direct capitalization and (2) yield capitalization.

Direct capitalization is a method used to convert an estimate of a single year’s income expectancy into an indication of value in one direct step, either by dividing the net income estimate by an appropriate capitalization rate or by multiplying the income estimate by an appropriate factor.

Yield capitalization is used to convert future benefits, i.e. an income stream, and reverting same into present value by discounting each future benefit at an appropriate yield rate or by applying an overall rate that reflects the investment’s income pattern, change in value and yield rate.

The purpose of this article is simply to provide you with an outline of the appraisal process; it is not intended as a detailed treatise on the appraisal process although it may seem like same.

Business Tax Breakfast Briefing

PLEASE JOIN US WEDNESDAY, JULY 15, 2015
BUSINESS TAX BREAKFAST BRIEFING
An Atlantic/Cape May Chapter of the NJSCPA Education Foundation Event
Presented by
Tax and Business Practice Group of Cooper Levenson Attorneys At Law

Join the Atlantic Cape Chapter of the New Jersey Society of CPAs and the attorneys from Cooper Levenson, who will cover hot topics for CPAs and their clients. This program will cover the following:

Robert E. Salad, Esq. LL.M., Moderator

The National Labor Relations Board: What you don’t know can hurt you. Employers and those who advise employers must be aware of the decisions on this increasingly activist Board on such issues as social media, human resource policies and internal investigations. Presented by: Russell L. Lichtenstein, Esq.

Top Three Ways the Kassner Case May Change the Residuary Trust Landscape. A discussion of this recent appellate court decision stemming from an appeal of a tax court decision and what it may mean for taxation of residuary trust income in New Jersey and beyond. Presented by: Michael L. Salad, Esq., LL.M.

Changes to the Federal Exemption Process. What accountants need to know about the latest changes in filing for federal exemptions. Presented by: Jill T. Ojserkis, Esq.

The Role of the CPA in Personal Injury and Business Litigation. What CPAs need to know to help their clients navigate litigation and how to assess damage income. Presented by: Randolph C. Lafferty, Esq.

Is Your Virtual House in Order? Given the recent headlines about “Get Transcript” and the unauthorized acquisition of information from 100,000 tax accounts, CPA firms need to implement protocols that are stricter than ever. Presented by: William J. Hughes, Jr., Esq., LL.M. and Peter Y. Fu, Esq.

Asset Protection for LLC Interests. LLC members are, in some ways, better protected than partnership members when it comes to protecting membership interests from judgment creditors. Presented by: Eric A. Browndorf, Esq.

REGISTER HERE 
Note: Season Pass holders must register for each event. Credit Hours are recommended in accordance with the New Jersey State Board of Accountancy.

Mandatory CPE Qualification: Based on our interpretation of NJ State Board of Accountancy regulations, this session will qualify for CPE credit. Our New Jersey CPE sponsorship number is 162.

Social Media Policy

Implementing and enforcing social media policies has been a top priority for many employers within recent years, and with good reason. It is now crucial that employers take a careful look at their own social media policies. The National Labor Relations Board (NLRB) has issued opinion memoranda which equate “comments” and “likes” on Facebook and other social media pages with the concerted activity protected by the National Labor Relations Act [the Act].

It is important for all employers to recognize that the Act and the NLRB’s decisions apply to them and not solely to those with a unionized workforce. This may come as a surprise to many employers, especially those who have no experience with unionization and related issues.

Specifically, the NLRB considered various factual scenarios in an apparent effort to explain whether social media policies prohibiting employees from posting disparaging comments regarding the employer, its managers or supervisors, violate the Act. In some circumstances, the NLRB found that the comments were protected and that discipline or retaliation against the employee was improper, whereas, in others they found posts and comments to be unprotected and for it to be lawful to discipline the employee in question.

In one example provided by the NLRB, a truck driver was traveling to Wyoming from his native Kansas. When he reached Wyoming he was unable to proceed due to closed roads and for a period of time, he was unable to reach anyone at his employer’s place of business. This employee commented on his Facebook page that his company was running off all of the good and hardworking drivers. No employees joined this conversation, however, the Operations Manager of the truck driver’s employer commented and the employee and the Operations Manager engaged in a discourse on Facebook. The Operations Manager threatened the truck driver to remove the comment and the driver was demoted. Here, the NLRB determined that the comment by the truck driver was “just venting” and was not protected by the Act. Therefore, the discipline was not forbidden.

Quite the opposite, another example provided a situation where an employee of a veterinary hospital posted a comment reflecting her frustration with the promotion of another employee. Three friends/co-workers of the employee commented and a discussion ensued regarding the employee who was promoted, the general mismanagement of their employer, and some specific issues they had with the employer. The employer terminated the employee, one commenter and disciplined the other two. The NLRB determined that the employees were engaged in protected activity and that this discipline constituted unlawful retaliation under the Act.

Additional examples were provided by the NLRB, highlighting the significance of each particular fact of a given situation. If your business is confronted with an employee making disparaging remarks, you should seek counsel with an experienced attorney before taking action against the employee. Further, you should review your business’s own social media policy to ensure that it complies with the Act. Cooper Levenson maintains an Employment Law practice group available to you for such questions and assistance.

South Jersey Biz Honors ‘best Attorneys In Business’ And ‘top 20 Under 40’ In June Issue

Atlantic City, N.J. – June 10, 2015 – Five Cooper Levenson attorneys were honored in the June edition of South Jersey Biz magazine.

Partner Amy E. Rudley was selected as a Top 20 Under 40 award recipient. She joins an exclusive group of attorneys under age 40 who are recognized for their achievements. Working in the firm’s Atlantic City office, Rudley focuses on the areas of employment law, hospitality and casino law, and defense litigation including civil rights litigation and premises liability. She has also been named to the New Jersey Rising Star List by NJ Super Lawyers since 2013.

South Jersey Biz named the following Cooper Levenson attorneys as ‘Best Attorneys in Business”:

Lichtenstein, based in the Atlantic City office, serves as chairman of the firm’s Employment, Labor, and Casino & Hospitality Defense Litigation practice groups. He is a partner at Cooper Levenson and is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney. He has been selected as one of New Jersey’s “Top Attorneys” in the employment litigation field by New Jersey Monthly Magazine each year since 2004 through the present. In addition, Lichtenstein has been selected for inclusion in the New Jersey Super Lawyers list for 11 consecutive years.

Ojserkis is chair of the Healthcare Law Practice Group and a partner at Cooper Levenson. She concentrates on medical staff/physician relations, transactional matters including managed care and technology, and governance issues for hospitals and medical staffs. She is based in the firm’s Atlantic City office. Rated AV Preeminent by Martindale-Hubbell, Ojserkis has been selected for inclusion in the New Jersey Super Lawyers list since 2013.

Schwartz is a partner at the firm and a member of the Real Estate and Tax & Business practice groups. He is well versed in the area of complex commercial transactions, real estate, bankruptcy, banking, contract negotiation and drafting, general corporate and commercial litigation, tax and estate planning, and mediation. He is based in the firm’s Atlantic City office.

Vincent represents and defends insurance carriers and self-insured companies in workers’ compensation claims. She is an associate based in the firm’s Cherry Hill office. She has also been named to the New Jersey Rising Star List by NJ Super Lawyers since 2013.

Cooper Levenson is a full service law firm since 1957, with 75 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm has regional offices in Bear, Del., and Las Vegas. For more information, visit www.cooperlevenson.com or contact us here.  

Appellate Court Affirms Sanction And Attorneys Fees For Employer’s Failure To Abide By Court Order

In Pschunder-Haaf v. Synergy Home Care of South Jersey, a petitioner filed a claim petition asserting that a work place accident caused injures to her spine, neck, and head. The Judge of Workers’ Compensation ordered the employer to provide medical and temporary disability benefits. An Order was entered on September 7, 2010, permitting treatment with Dr. Cervantes and continuing temporary wage benefits until the petitioner was returned to work or a light duty position was accommodated.

The employer failed to pay the medical benefits and also terminated the petitioner’s temporary disability benefits. The judge eventually entered two Orders to Enforce the September 2010 Order. The employer continued its ongoing refusal to provide treatment and, eventually, two more Orders were entered requiring the employer to provide medical and/or temporary disability benefits. An amended claim petition was filed alleging derivative injuries.

Eventually, a hearing took place at which time the judge issued an oral decision in February 2014 compelling the employer to provide medical treatment for primary and derivative injuries and pay temporary disability benefits. A Motion for Reconsideration filed by the employer was denied and sanctions were entered against the employer in the amount of $5,000 and $10,000, $7,500 in attorneys’ fees, and $5,654.10 in reimbursement for expenses.

The employer appealed, contending that the amended claim petition was procedurally deficient, that the February 2014 Order went against the weight of the evidence and that the imposition of sanctions and award of fees were erroneous.

The Appellate Court rejected the employer’s argument that the claim petition was procedurally deficient. With respect to the employer’s contention that the judge’s decision was against the weight of the evidence, the Appellate Court reviewed “whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency’s expertise.” In confirming that the J.W.C.’s findings were supported by credible evidence, the Appellate Court was satisfied with the J.W.C.’s reliance on the medical records, evidence, and testimony. As cited by the Appellate Court, the J.W.C. found that the petitioner’s expert, Dr. Craig Rosen, testified more credibly than the employer’s expert, Dr. Maslow. In fact, the J.W.C. stated that Dr. Maslow’s testimony was insulting to the court as it “flagrantly flies in the face of the medical records and reports.”

Finally, the Court considered the award of sanctions, fees, and costs ordered by the J.W.C. As set forth in N.J.A.C. 12:235-3.16(h)2, a judge of compensation is permitted to institute fines and penalties. The Appellate Court affirmed the J.W.C.’s imposition of the $5,000 sanction and attorney fees. However, the Appellate Court remanded the portion of the $5,654.10 award as the J.W.C. did not provide an explanation for requiring reimbursement. In addition, the Appellate Court remanded the $10,000 sanction as the Court found that the J.W.C. abused her discretion by awarding a sanction in excess of the Division’s rules which permits a fine of $5,000 for continued noncompliance. The Court did note, however, that a sanction could be imposed, if warranted, pursuant to N.J.A.C. 12:235-3.16(h)2.