Posts Tagged ‘workers’ compensation’

Medical Examinations in Workers’ Compensation Cases

By Bruce P. Miller

Tuesday, March 7th, 2017

When an individual files a Workers’ Compensation claim alleging that he/she suffered injuries as the result of an on-the-job accident, the law gives the defense (Respondent) the right to require that a medical examination be performed by a doctor of the defendant’s choosing for the purpose of evaluating the Petitioner’s injuries, providing a diagnosis of the injuries and also providing an opinion of the extent of permanent disability.

That information is, under the law, set forth in a report that is issued on behalf of the defense and is utilized in the case to establish the nature and extent of permanent disability and a basis for an award of disability on behalf of the Petitioner.

Not infrequently, the Petitioner fails to attend the medical examination with the doctor who has been chosen to perform same.

Several issues become involved when this occurs.  Questions arise regarding the Petitioner’s availability for the examination, the convenience of the location of same, the length of time that the Petitioner was provided with notice of the examination and the convenience of the location of the examination, primarily having to do with the distance between the Petitioner’s home and the doctor’s office.

When the doctor’s appointment is missed, at least on a second occasion, typically the doctor will charge a missed appointment fee and the Respondent will attempt to make the Petitioner responsible to pay same.

The Judge of compensation will be called upon to decide whether a missed appointment fee is appropriate, whether it should be paid by the Petitioner and if so, the amount of same.

Essentially, the Judge will utilize a common sense approach to this issue.

Suffice it to say that this will not become an issue if the Petitioner advises his/her lawyer with respect to any problems attending the examination and the timing of same.  The distance that has to be traveled should be discussed along with any other problems that can be anticipated insofar as attendance at the examination is concerned.

This is a problem that is usually easy to anticipate and important to avoid since it can create a distraction from the important issues in the Workers’ Compensation case.

New Jersey Workers’ Compensation Laws On Partial Permanent Disability

By Bruce P. Miller

Tuesday, March 15th, 2016

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.

Court Confirms Workers’ Compensation Carrier’s Priority Lien Against The Proceeds Of An Injured Worker’s Third Party Recovery

By Gary E. Adams

Thursday, February 25th, 2016

The Superior Court of New Jersey, Appellate Division, recently upheld a workers’ compensation judge’s decision holding that the workers’ compensation insurance carrier is entitled to receive most of an injured worker’s settlement proceeds from a civil lawsuit he had filed against the manufacturer of the machine that had caused his injury while at work.

New Jersey Workers’ Compensation Law provides that when an injured worker pursues a workers’ compensation claim for an injury at work, and also pursues a civil lawsuit against a third party (in this case, a machine manufacturer), the workers’ compensation carrier is entitled to receive reimbursement of two-thirds of any benefits it paid to the injured worker, less up to $750.00 in costs incurred by the attorney in pursuing the third party claim.

In this recent claim (Cabrera v. Cousins Supermarket), the attorney pursuing the claim against the machine manufacturer spent over $15,000.00 in costs to attempt to establish that the machine that caused Mr. Cabrera’s injury was defective. Unfortunately, the attorney was only able to recover $25,000.00 on Mr. Cabrera’s behalf. After reimbursing the attorney’s costs and paying the attorney’s fee, Mr. Cabrera received nothing. Nevertheless, the workers’ compensation carrier demanded repayment of the amounts it had paid on Mr. Cabrera’s behalf.

The Court ruled that even though Mr. Cabrera had received nothing from the third party recovery, the workers’ compensation carrier was entitled to the return of two-thirds of the amount of benefits it had paid out on Mr. Cabrera’s behalf. According to the Court’s ruling, the workers’ compensation carrier’s lien takes priority over the worker’s right to receive a third party recovery, as well as his attorney’s right to receive reimbursement of costs incurred in pursuing the third party claim.

The inequity in this outcome is obvious. The workers’ compensation carrier, which did nothing to pursue the manufacturer, gets paid before the injured worker and his workers’ compensation attorney. The end result – the worker ends up with nothing and the third party attorney eats his costs. This inequity, unfortunately, will be not cured until the New Jersey Workers’ Compensation Statute is amended to limit how much the carrier can take from a worker’s third party recovery. Until that happens, this decision will only discourage attorneys from pursuing third party claims, especially in cases that require the use of specialized experts, as was the case here.

New Jersey Workers’ Compensation Act Creates Second Injury Fund

By Bruce P. Miller

Thursday, August 1st, 2013

The New Jersey Workers’ Compensation Act creates an entity called the Second Injury Fund.  All employers in the State of New   Jersey are required to pay into this fund through their Workers’ Compensation policy premium.  The Fund is administered by the Office of the Attorney General of the State of New Jersey.  The Fund comes into play in those cases in which an injured worker has been rendered totally and permanently disabled.

The purpose of the Fund is to pay such workers in the following circumstance.  It has to be established that the injured worker will never be able to work again, in any capacity or in any form of employment.  That disability must be the result of two things: injuries or illness sustained as a result of employment and injuries or illness that occurred prior to the work-related accident or illness.

The historic purpose of the Fund has been to encourage the hiring of workers who sustained and suffered from various injuries or illnesses prior to their employment by relieving the employer of the responsibility to pay for disability that had nothing to do with and preceded that worker’s employment.

An example of such disability is the following.  A worker suffers a severe injury as a result of an accident during the course of employment; however, that injury, in and of itself, does not render the worker unable to return to work.  The work-related disability is of a partial nature.  However, if the worker had suffered pre-existing health issues that, in combination with the work-related injury, render that worker 100% permanently and totally disabled, the Second Injury Fund is responsible to pay for the pre-existing disability and the employer is responsible to pay for that disability which arose as a result of the work-related accident.

Another illustration of Second Injury Fund liability is the following.  An individual, as a child, is playing with a BB gun and is accidentally shot in one eye, resulting in blindness in that eye.  That person continues to live his/her life and has a working career.  One day, while working, an accident occurs on the job in which something strikes the other eye causing blindness in that eye.  The combination of the two injuries, pre-existing and work-related, result in total blindness and thus total permanent disability.  In that situation, the employer is responsible to pay 50% total permanent disability for the work-related blindness and the remaining 50% is paid by the Second Injury Fund for the childhood blindness.

Total and permanent disability benefits are paid for the rest of the worker’s life.

As a practical matter, workers often tend to forget or minimize pre-existing health problems because their focus is often entirely on the work-related injury.  However, as illustrated above, an individual’s pre-existing health issues are quite important in a claim for total permanent disability benefits.  It is our practice to inquire closely of an individual who is making a claim for total permanent disability about that person’s entire health history, including childhood injuries, injuries arising out of any motor vehicle accidents throughout that person’s life as well as diseases for which that individual suffers and may see a family physician for treatment, such as diabetes, hypertension, hearing loss, heart problems, breathing issues and psychological problems.  It has to be shown that if such problems exist, they continue to impact the person’s life and that person’s ability to return to work.

Included among a worker’s pre-existing health history are any work-related injuries sustained throughout that person’s life, whether or not a Workers’ Compensation award was obtained.

Total permanent disability entitles a worker to receive 70% of salary up to a set maximum rate.  The maximum rate in 2013 is $826.00 per week.  These benefits are paid to a totally disabled individual for life, assuming that person does not recover to the point of being able to return to work.

When preparing a Workers’ Compensation case in which a claim for total permanent disability benefits is made, it is very important that a complete medical and health history be presented.  This often requires obtaining and reviewing health records one may have respecting previous illnesses and injuries.  The input of family members and friends who are able to remember injuries and illnesses in the past that the worker may have forgotten is extremely important and helpful.

New Jersey Workers’ Compensation: Appellate Division Upholds Dismissal of Worker’s Claim for Gross Negligence

By Gary E. Adams

Thursday, April 11th, 2013

In a recent decision by the New Jersey Appellate Division, the Court re-affirmed the exclusivity section of New Jersey’s Worker’s Compensation Act, which provides that an injured worker can only pursue a civil lawsuit against his employer if there is “intentional wrong”. In New Jersey, an employee can avoid the exclusive remedy provision (known as the “workers’ compensation bar”) in the Worker’s Compensation Act only if the employer knowingly exposes the employee to a “substantial certainty of injury” and the injury sustained is not a “fact of life of industrial employment” which the New Jersey legislature intended the Worker’s Compensation Act to immunize. However, merely proving a high probability of injury or knowledge that injury or death could result is insufficient to avoid the exclusivity of the Worker’s Compensation Act.

In the matter of Fendt v. Abramson, the employee was working on a driveway paving job as a traffic flagger when he was struck by a vehicle.  He had been directed by his supervisor to direct traffic around the construction site.  He was directed to stand in the street with nothing more than a flag in his hand.  The employer later plead guilty to violating traffic safety laws. In addition, the employer conceded it had traffic safety equipment available, but did not use it. Plaintiff’s expert opined that plaintiff’s employer “knowingly exposed plaintiff to a risk that was substantially or virtually certain to result in harm.” At the close of discovery, the defendant employer was granted summary judgment on the basis that while its conduct may have been negligent, it was not an “intentional wrong.” The Appellate Division affirmed, noting that while the employer’s conduct may have been grossly negligent, there was no affirmative act taken by plaintiff’s employer that made the workplace significantly less safe for its employees.

TheNew Jerseyappellate courts have consistently limited the “intentional act” exception to the Worker’s Compensation Act. These decisions make it clear that even where employers are grossly negligent in exposing workers to extremely dangerous work environments, they are immune from civil lawsuits due to their conduct, and the injured worker is limited to his workers’ compensation remedy.

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.

Workers’ Compensation and Statute of Limitations in New Jersey

By Bruce P. Miller

Wednesday, February 20th, 2013

Although Workers’ Compensation law in New Jersey typically involves a Statute of Limitations of two years, there are exceptions.  When someone has sustained an injury in a work accident, the basic law requires that the case be filed within two years of the date of the accident.  This is similar to a case involving injuries sustained, for example, in a motor vehicle accident.  However, there are important differences.  If an employee is injured in a work accident and receives treatment authorized and paid for by the employer or its insurance company, or receives disability benefits from the employer or its insurance carrier, the formal case (the filing of a Workers’ Compensation Claim Petition) only has to be filed within two years of the last payment of disability or the last treatment received from the medical provider who was paid for by the employer or its carrier.  In other words, the case does not have to be filed within two years of the date of the accident; rather, it has only to be filed within two years from the last date of treatment or the last payment of disability.  Therefore, if the treatment that was paid for by the employer or its carrier extended for a period of two or three years, or disability benefits were paid for a period of two or three years following the accident, the Claim Petition need only be filed within two years from the date of that last payment.

When the Workers’ Compensation case deals with what is called an occupational injury rather than an accident, namely, that the injury was sustained as a result of day in and day out stress rather than one specific accident, a different Statute of Limitations applies.  This law says that the Workers’ Compensation case has to be filed within two years of the date that the injured worker knew, or should have known, that the injury was related to the job.   For example, if the person suffered an injury to his/her lungs as a result of inhaling dirt or fumes on the job, that person may not realize or appreciate that the lung condition is due to work until such time as he/she is told so by a treating doctor or by an attorney to whom the employee is referred.  In those instances, that employee is not deemed to have known nor should have known of the connection between the lung condition and work environment until told so and thus the case itself does not have to be filed until two years from the date that the opinion was given by a reliable source, such as a doctor or a attorney.

Injured Worker Entitled to Medical Treatment Out of State

By Gary E. Adams

Monday, May 23rd, 2011

The Appellate Division recently ruled that an injured worker, who had moved to North Carolina subsequent to his work-related injury, was entitled to medical treatment in North Carolina at the expense of the workers’ compensation carrier for his work injuries.
The Court ruled that “The (Workers’ Compensation) Act does not contain any geographical limitations on the provision of medical treatment”. This decision makes it clear that even though the workers’ compensation carrier still retains the right to control the provider of medical treatment, it cannot refuse to provide medical treatment to an injured worker simply because he or she moves out of New Jersey.
This decision overrides the long held position of many carriers that the injured worker is obliged to return to New Jersey to obtain additional medical treatment related to his injury on the job.

New Jersey’s Workers’ Compensation Act

By Jeffrey S. Monaghan

Friday, May 20th, 2011

Work related accidents can cause significant emotional, physical and financial problems for the injured employee. New Jersey’s Workers’ Compensation Act is designed to cushion the impact of workplace accidents by providing an injured employee with medical care, lost wages on a temporary basis and a monetary award if the overall effects of the injury have left the injured worker with some type of permanent injury.

Employees injured at work are likely to be compensated without proof of fault on the employer’s part, and regardless of any contributory negligence by the employee. Workers can receive compensation benefits for both specific traumatic injuries, such as a broken ankle, as well as for what are called “occupational related” diseases, such as carpal tunnel syndrome, if they arose out of and in the course of employment.

First, there is the medical treatment benefit. The employer is required to furnish medical, surgical and other treatment and hospital services necessary to cure and relieve the effects of the injury. The employer must cover the cost of medication that has been prescribed by an authorized doctor for treatment of the injury. The caveat is that the employer is allowed to select the medical professionals who will provide and oversee the necessary and related treatment from a work related injury.

The second benefit injured workers are entitled to is a wage replacement benefit called temporary compensation. This benefit is mandated when a treating doctor, authorized by the employer or it’s workers’ compensation insurance carrier, has removed the employee from work for a period of time while medical treatment is being provided for the work related injury. Temporary compensation benefits are available when an injured worker has been disabled for more than seven days following the accident. Once the eighth day of the lost time has been reached, the worker is compensated from the first day that he/she became unable to work. Temporary disability benefits continue to be paid until either the injured worker returns to work or until he/she has reached the maximum benefit from the medical treatment being provided.

The weekly temporary compensation rate payable to an employee is an amount equal to 70 percent of the worker’s gross weekly wages received at the time of the accident, subject to a maximum of 75 percent of the statewide average weekly wages.

The third benefit is known as permanent disability. A worker who can prove that a work related injury has left him or her with some type of permanent disability is entitled to a monetary award based on the extent of disability sustained. The injured worker, through his or her attorney, must prove that the injury has resulted in a material lessening of the working ability or, that the injury restricts the individual in performing the regular activities of his or her daily life.

The determination regarding whether there has been a permanent disability and the extent thereof, is made after the medical treatment has concluded. At that time, the employee undergoes an examination by medical experts who specialize in the field of medicine covering the specific work related injuries sustained. These doctors review the medical records and conduct a physical examination of the employee following which the doctor prepares a report containing his or her estimate of permanent disability.

Also, for a period of two years after the conclusion of the initial case, an employee may be entitled to additional medical treatment or monetary benefits if it can be demonstrated objectively that the condition has significantly worsened.

Finally, payments received by way of temporary compensation and or permanent partial or total disability are not subject to federal or state taxes.