The law of workers’ compensation in New Jersey entitles the injured worker to three benefits:
- Medical treatment
- Temporary disability benefits
- Permanent disability benefits (partial or total)
Medical Treatment
The law dictates that the employer/insurance carrier has the right to control and direct medical treatment. This means that the insurance company selects the medical providers. The law of workers’ compensation does not confer upon an injured worker the right to a second medical opinion.
The injured worker is free to request a second opinion from the carrier. The injured worker is also free to seek a second opinion on his own. If the worker seeks a second opinion on his own initiative, he must pay for this opinion, himself. It is unlawful for him to present bills for medical treatment for a work-related injury to a private medical carrier. If the worker does so, the medical provider has the right to intervene in his compensation case and seek reimbursement. The injured worker may also be open to a charge of insurance fraud. If any medical bills are processed through Medicare or Medicaid, the injured worker will reimburse Medicare and Medicaid at the conclusion of the case.
If a worker is dissatisfied with his medical treatment, he is free to file a Motion for Medical Benefits seeking relief from the Judge of Compensation. The injured worker must produce a report from a physician stating that he requires diagnostic testing and/or treatment as a result of the compensable accident. The insurance carrier must respond to this Motion by producing a report from a physician addressing the testing and treatment sought by the petitioner. If the Motion for Medical Treatment cannot be resolved, it may result in a trial on this Motion.
If the Motion for Medical Treatment proceeds to trial, the injured worker testified in front of the Judge. The injured worker must then produce his medical expert in court to testify in front of the judge. The insurance carrier will then produce its medical expert in court. After the Judge of Compensation has heard all the testimony, the Judge will render a decision.
The law states that medical treatment must have the potential to cure the condition. The carrier is not required to provide palliative treatment, as a general rule. This is a complex area that is determined on a case-by-case basis.
If the authorized treating physician states that an individual is unable to work while under medical treatment due to his compensable injury, the insurance company must provide
Temporary Disability Benefits
Temporary Disability Benefits are monies paid in lieu of wages. These benefits are paid at the rate of 70% of the injured workers’ average weekly wages. These benefits are non-taxable.
If the authorized physician states that the injured worker is capable of modified duty, it is the obligation of the employee to call his employer and inquire into whether such modified duty is available. If the employer chooses to accommodate the restrictions imposed by its authorized physician, the employee must report for work.
However, if the employer declines to accommodate those restrictions, the compensation carrier is obligated to issue temporary disability benefits to the injured worker. These benefits will continue until such time as the worker is released from medical treatment as having attained the maximum benefit from medical treatment, or is returned to work without restrictions. The carrier is not required to provide notice to the injured worker that his benefits will or have terminated. The carrier has the right to terminate those benefits as of the date the petitioner is released by the physician, without notice.
Once the injured worker has attained the maximum improvement from medical treatment (MMI), the law states that we must allow 26 weeks to pass before securing permanency evaluations. The insurance company has the right to waive this rule, in which case we move more quickly toward resolving the case.
Permanent Disability Benefits
If the injured worker has sustained permanent loss of function, that is more than de minimis (minimal), the worker is entitled to receive an award of partial, permanent disability. This results in an Order embodying the nature and extent of permanent disability. For example, is a worker sustained a fractured patella, he may receive an award of 27 1/2% of the leg; if the worker sustains a carpal tunnel syndrome, he may receive an award of 10% of the hand; if the worker sustains a herniated disc with surgery, he may receive an award of 25 % of partial total disability. The percentages translate into a monetary award.
If the injured worker has sustained a permanent loss of function so severe that the worker is unable to engage in employment of any kind, the worker may be entitled to permanent, total disability. This means that the worker would receive his weekly benefit for the rest of his life, provided he does not regain the ability to work.
If the injured worker sustains an injury such that he is unable to return to his specific employment, this does not automatically result in an award of permanent and total disability. Although a person who engaged in heavy labor who sustains a severe back or shoulder or hip injury may be unable to return to heavy labor, the worker may be found capable of performing medium, light or sedentary work.
Those jobs may require skills not possessed by the injured worker. Nonetheless, the law does not impose a duty upon the compensation carrier to retrain a worker who does possess those skills. It is the responsibility of the worker to secure appropriate education and/or training. The worker may contact the New Jersey Division of Vocational Rehabilitation for assistance.
Please note: the NJ law of workers’ compensation does not provide for any benefits other than those enumerated above: medical treatment, temporary disability benefits, and temporary disability benefits. There is no monetary award for pain and suffering. There is no compensation for lost wages beyond the compensation afforded for the period of time the authorized physician kept the injured worker out of work. The law does not allow an injured worker to sue his employer or compensation carrier for damages because he is dissatisfied with his medical treatment. He is limited to filing a Motion for Medical Treatment in his compensation case in the Dept. of Labor.
The law of workers’ compensation states that it is unlawful for an employer to fire an employee in retaliation for filing or testifying in a workers’ compensation claim. The worker may file a lawsuit in Superior Court for retaliatory discharge. The worker may also file a Complaint of Discrimination in the Dept. of Labor.
The injured worker can be terminated, lawfully, for violating the absence control policy of the employer. There is no worker’s compensation exception to this rule. However, other laws may have a bearing on such a termination. These laws include, but are not limited to, the New Jersey Law Against Discrimination, the Family Leave Act, the Americans with Disabilities Act. The worker may have remedies available through the Equal Employment Opportunity Commission (EEOC) and the Division of Civil Rights (DCR).
If a worker wishes to explore the possibility of filing a retaliation or discrimination claim, this falls outside the scope of the workers’ compensation law. The worker must consult a Labor Law attorney: an attorney who practices Employment Law. The workers’ compensation attorney is limited to pursuing the rights of the injured worker in the Department of Labor, Division of Workers’ Compensation, which is the Administrative Agency with jurisdiction over workers’ compensation claims.
Contact a New Jersey Workers’ Compensation Attorney
