Archive for March, 2013

New Jersey Workers’ Compensation and Wage Replacement Benefit

By Jeffrey S. Monaghan

Thursday, March 7th, 2013

The New Jersey Workers’ Compensation Statute mandates a wage replacement benefit called “Temporary Compensation” when a treating doctor, authorized by the  workers’ compensation insurance carrier has ordered the employee not to work for more than seven days following an accident, while medical treatment is being provided for the work related injury.  Once the eighth day of lost time from work has been reached, the employer or their workers’ compensation insurance carrier must compensate the injured worker for lost wages retroactive to the first day the employee has been unable to work.  The temporary compensation is payable at a weekly rate equal to 70% of the employees normal weekly gross wages subject to a maximum of 75% of the statewide average weekly wages.

The injured worker’s entitlement to receive this wage replacement benefit continues for the period of time that the employee is under the authorized medical care of a doctor who has the employee out of work, or until the treating doctor has placed the injured worker at what is called Maximum Medical Improvement from the injury.

A common situation arises when an employee has sustained an on the job injury, which the treating doctor indicates disables the employee  from performing his or her full  job duties.   However, the treating doctor believes that the injured worker is capable of doing a light duty job if such work were available.  For instance, a worker employed as a licensed practical nurse sustains an on the job injury to her low back while lifting or moving a patient. The authorized treating doctor indicates that the injured worker is unable to perform her full job duties as a licensed practical nurse; however, she would be capable of working doing patient related paperwork/office work.  Under these circumstances, the employer has the choice of providing the injured employee with this “light duty work” or if the employer is unable to so accommodate the injured worker, then they must pay the worker the appropriate lost time benefits.

A common occurrence which often arises is when the injured employee is provided light duty work but the light duty work is less than their normal full time employment, or the employer pays the injured work less money to perform the light duty work than the injured worker was previously receiving in their full time employment.  The question then arises, as to whether the employer must pay the injured employee the difference between his full temporary compensation rate and the wages that injured worker is now receiving in their light duty position. Until recently, there was no clear case law specifically addressing this issue.  This past fall in the case of Jose Soto v. Herr’s Foods Incorporated the workers’ compensation trial judge specifically addressed this issue and held in his decision that the logical interpretation of the workers’ compensation statute NJSA 34:15—12 would require employers to remit the difference between the amount earned by the petitioner in their light duty work capacity and the amount to which he or she would be entitled by statute under a full  temporary compensation rate.

As a result of the trial judge’s decision in this case, there is now strong argument and legal precedent for what has long been advocated by attorneys representing injured workers. Namely, that when an injured worker is prohibited for a period of time in returning to his full time employment as a result of an admitted work related injury, if the employer is able to provide the employee with some type of light duty work, the employee cannot receive a rate of pay less than his full temporary compensation rate applicable at the time the employee sustained  the work related injury.

Light Duty Rules in Workers’ Compensation

By Kendall W. Medway

Friday, March 1st, 2013

I often get asked about the “rules” that apply when a Petitioner is returned to work on light/restricted duty in a Workers’ Compensation matter.  As long as the employee has not yet reached maximum medical improvement, the employer has an affirmative duty to determine whether appropriate light duty exists.  This means not only that the job duties comply with the restrictions outlined by the doctor, but that the light duty job itself is a legitimate assignment.  In other words, an employer isn’t supposed to just stick the employee in a closet, sitting at a card table, for eight hours a day and call that light duty.  Recent case law also suggests that light duty is not appropriate if the worker makes less money while working (for example, because of restricted hours) than he/she would while receiving Workers’ Compensation benefits.

To recap, if an employer is forcing their employee to perform work activity that the doctor has told them not to do, if the employer has created a job out of thin air that normally doesn’t exist in their workplace, or if the employee is making less money while working light duty than while out of work on Workers’ Compensation, the light duty being offered is probably not “appropriate,” and the employer may be required to put them back out of work and back on Workers’ Compensation.