New Jersey Workers’ Compensation law allows for awards for partial permanent disability as well as total permanent disability. A partial permanent disability award involves injuries that render the worker permanently disabled but not unable to work. That worker can continue to work and go about the activities of his/her life but is entitled to an award for whatever disability has been sustained, anywhere from 1% loss of use of the body to 99% loss of use of the body.
The law also encompasses injuries that render a worker totally and permanent disabled. In this situation, the person is unable to work for the rest of his/her life.
In some instances, a permanent disability award reflects more than one accident and injury. In that circumstance, the individual has been injured in the past but was able to continue to work. Thereafter, as the result of a subsequent injury, the worker is considered completely unable to work and entitled to total disability benefits.
In such a situation, the employer for whom the individual was working at the time of the most recent injury is required to pay total disability benefits.
In addition, an organization of the State entitled the Second Injury Fund, which is administered by the Attorney General’s Office, pays benefits that, in combination with the award paid by the employer, result in total disability benefits.
Once an individual receives a total disability award, the benefits are paid for life and no further benefits are payable for the final injury.
However, an issue that has become controversial in the New Jersey Workers’ Compensation Courts has arisen. The context is as follows. A worker receives a partial permanent disability award for an injury that occurred, for example, five years ago. That injury was sustained to the person’s back and entitled him to an award of 40% partial permanent disability. The person was able to and, in fact, continued to work with the disability that had been sustained.
However, the individual thereafter sustained another injury as the result of a new accident to the neck. The two injuries in combination result in total permanent disability to the worker who has been rendered unable to work. Under these circumstances, the employer for whom the Petitioner was working at the time of the last injury is responsible for example, for 60% of the entire disability for the neck injury.
The Second Injury Fund pays 40% of total permanent disability, reflecting the earlier pre-existing partial disability award. Thus, the last employer pays 60% of permanent total disability and the Second Injury Fund pays 40% of total permanent disability, which in combination results in a 100%, lifetime disability award
The controversy that has arisen has to do with whether following the entry of the two awards a person can seek further permanent partial disability benefits if in fact it can be proven that the pre-existing back injury has grown worse; that is to say, whether the individual is entitled to continue to receive lifetime benefits based upon the most recent neck injury and also, at the same time, increased partial permanent disability benefits for the back.
The employer or its insurance carrier will argue that since the person was already collecting a 100% total permanent disability award, that employee is not entitled to any further permanent disability benefits because 100% is the maximum award possible.
The counter argument is that since the overall disability, the first having to do with the back and the second having to do with the neck, is made up of two different injuries and arose out of two completely different accidents, the individual should not be precluded from being awarded further benefits for the original injury sustained to the back if it has grown worse.
If that were to occur, the worker would continue to receive two different awards, the first reflecting lifetime benefits for the neck injury and also would receive benefits for whatever increase in disability has been sustained as the result of the back injury. For example, if the increased disability for the back has increased from 40% to 50%, the worker would be entitled to receive that additional payment at the same time that the worker continues to receive total disability benefits for the neck injury.
This issue is being considered by the New Jersey Supreme Court in the case of Catrambone v. Bally’s Park Place, A-3589-13T4. A decision is anticipated in the near future.