mjordan@stark-stark.com
856.874.4421
Marci Hill Jordan is a Shareholder in the Workers’ Compensation Group. She has been concentrating on representing injured workers in their Worker' Compensation Claims and Social Security Disability Appeals for over 19 years. Prior to joining Stark & Stark, Ms. Jordan was associated with the firm of Tomar, O’Brien, Jacoby & Graziano in Cherry Hill, New Jersey.
The above question is one frequently asked by my clients when they have been out of work for a significant period of time after a work-related injury. While the answer certainly varies depending on the circumstance, as a general rule I encourage my workers’ compensation clients to apply for Social Security Disability benefits once they know they will be out of work for at least 12 months, and feel that they cannot return to their past job, or any other type of work. While the Social Security regulations do not require a person to be out of work for 12 months before applying for benefits, the regulations do state that your disability must be significant, and that you must prove that you are expected to be out of work for at least 12 months. Practically in most cases you will be turned down for Social Security Benefits if you apply before you have been out of work for 12 months. However that does NOT mean you have to wait the full 12 months before you apply for benefits. If you are not approved in the initial stage, there are several levels of appeals, and this process can take several months, if not years. It is best to get started sooner rather than later, and get your case in line for a Hearing if that becomes necessary. In fact the National Organization of Social Security Claimants’ Representatives recently published an article in the January 2012 Social Security Forum that states that once the application for Social Security Disability benefits gets to the Hearing Office in South Jersey, the average processing time is 344 days. That same article states that the fastest place to process a disability claim is if you live in Shreveport, LA (172 days) and the slowest is St. Louis, Mo (476 days). The national average to process a claim for Social Security Disability benefits at the Hearing office is 356 days. In any event, there is no reason to delay applying if you do not feel you are going to be able to return to any type of work.
At Stark and Stark, the same attorney can handle both your Workers’ Compensation case and Social Security Disability appeal. Please call us for a free consultation at 856-874-4443.
Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.
What does “Total Disability” mean in a workers’ compensation case? The New Jersey Statutes Annotated defines the above as “disability that is permanent in quality and total in character.” N.J.S.A. 34:15-36. The statute goes on to explain that the impairments can be physical or neuropsychiatric, must be caused by the work related accident or occupational condition, and that the injured worker must show that “no fundamental or marked improvement in such condition can be reasonably expected.”
Total and permanent disability in a workers’ compensation case is different from the standard used by the Social Security Administration to determine disability. Under the Social Security standard, a worker has to prove that given their age, education level, and physical capacity they cannot return to their prior job, or any other job that they have done in the past 15 years. The workers’ compensation standard is harder to meet because age and past work do not come in to the equation. The injured worker has to prove that because of the disability from the work accident (or the work accident combined with prior medical conditions) they can no longer work at all. This is a tough standard, but certainly possible to meet. The standard can be met if, after the accident, the injured worker can prove that they are rendered unemployable in a reasonably stable job market.
Today I settled a case in court for an injured worker who received Total Disability under N.J.S.A. 34:15-36. Since this woman was a low wage earner while she was working, she is limited in the amount of money she will receive weekly from the workers’ compensation carrier, even though she is totally disabled. I was able to get her the maximum she is entitled to under the law, however, since by law there is no cost of living increase in workers’ compensation total disability cases, her weekly pay from the workers’ compensation carrier does not increase over time.
Total Disability cases are complex in nature, and can take time to resolve. If you have any questions regarding your work related injury, please contact the attorneys in the Workers’ Compensation department of Stark & Stark.
Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.
In order to obtain a monetary award, the injured worker (“Petitioner”) must prove that they have a partial permanent disability under the Workers’ Compensation Statute. The basic definition of “disability permanent in quality and partial in character” is contained in N.J.S.A. 34:15-36.
However, the Supreme Court of New Jersey has given us more direction in analyzing this section of the statute in several important cases. The Court’s opinion in Perez v. Pantasote offers a more detailed description of how to apply the legal standard, and is the seminal case in this area of the law. Proving that Petitioner has lost wages and lost the ability to do a prior job can impact the amount of permanent disability benefits a worker receives. However New Jersey is not a wage loss state for purposes of proving entitlement to an award of partial permanent disability, and loss of wages is only one factor to consider. In fact the statute specifically states that a Petitioner cannot be precluded from obtaining partial permanency benefits simply because they return to work, doing to same job. So whether the petitioner is able to return to the prior job or not, there are more factors to consider in an award of partial permanent disability.
The Perez case requires proof of the following in order for the petitioner to receive an award of partial permanent disability:
The issue of objective medical evidence is of the utmost importance. This phrase refers specifically to the objective testing that takes place during the course of Petitioner’s treatment. The best objective medical records to prove a case for partial permanent disability are reports of testing such as X-ray reports, MRI reports, EMG reports, surgical reports etc. If these tests show ABNORMAL findings the “objective medical evidence” part of the Perez standard is met. It is then relatively easy to prove “functional loss” by proving either a lessening to a material degree of working ability, or an impairment in other aspects of life. If the Petitioner has returned to work, this standard can be met by showing a significant decrease in the ability to do activities around the house, or sporting and social limitations.
Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.
At the Workers’ Compensation Bench Bar Meeting on December 7, 2011, the Honorable Richard E. Hickey, III (retired) gave an informative presentation on the calculation of temporary disability benefits in workers’ compensation cases.
As a general rule, the rate for workers’ compensation weekly temporary disability benefits are calculated based upon the average weekly wage of the injured worker in the 6 months before the accident. Workers’ compensation attorneys rely on N.J.S.A. 34:15-37 to address the issue of how to compute wages. This section of the Workers’ Compensation Statute that states that we look at the wages of the injured worker in the 6 months before the accident is not a “bright line” rule in practice. This practice of looking back 6 months really applies to a worker who works “piece work.” However, the majority of workers in today’s labor market are not working piece work. Most workers have an hourly rate of pay or a yearly salary. The status says that when the rate of pay is hourly, we multiply the hourly rate by the hours worked in an ordinary week. Sounds simple, but the phrase “ordinary week” leaves a lot of room for interpretation.
This is especially true since the statute also states that if the employee works less than the customary number of days or hours in an ordinary week, then the rate shall be determined by multiplying the hourly rate by the number of hours regularly worked by that employee in the “character of the work involved,” another phrase open to interpretation. The statute does NOT address what happens if a person misses work for sickness or vacation, and does not customarily get paid for this time. In calculating that person’s average wage, is that week omitted from the calculation or counted in as “0" wages for that week? The statute does not answer that question. While case law states that this section of the statute is a guide for trying to arrive at a realistic estimate of the worker’s true weekly earnings, this does not always happen in practice. Once the average weekly wage is determined, the injured worker receives 70% of that wage, tax free, while they are out of work under the care of the workers’ compensation doctor. The 70% figure is going to be capped in the year 2012 at $810.00 per week.
Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.
Don’t allow your employer to tell you that you are not an employee, and therefore not entitled to workers’ compensation benefits simply because you do not receive a regular paycheck and receive a 1099 form instead of a W2 for tax purposes. The recent New Jersey case of Johantgen v. Brandywine Senior Care Center, A-4883-09T1 (App. Div. October 31, 2011) outlines the difficulties an employer might encounter in trying to prove that a worker is an independent contractor, and not an employee.
Ms. Johantgen worked as a hair stylist one day a week for residents of the employer’s nursing home. She fell from a chair and injured her wrist while hanging decorations in the area where she worked at the facility. She filed a workers’ compensation claim against the facility, and they denied the claim on the basis that she was an independent contractor, and not an employee of the nursing home.
Ms. Johantgen worked in an assigned location in the nursing home and furnished the majority of her own supplies, while the nursing home provided the fixtures such as the chairs, sinks and a cabinet. The nursing home provided the clients and set the prices for Ms. Johantgen’s services. After the services were performed Ms. Johantgen submitted a bill to the nursing home. The nursing home would deduct 15 % as their “cut” and pay Ms. Johantgen the remaining 85% of the bill for services she performed. The nursing home gave her a 1099 form each year, and did not deduct any taxes or other items from her pay.
The workers’ compensation Judge found that Ms. Johantgen was an employee of the nursing home, and not an independent contractor. The Appeals Court applied the relative nature of the work test and the control test and found that she was an employee. The relative nature of the work test examines the relationship between the parties, and looks to see if there is a mutual economic relationship between them. The control test looks at the control the Employer retains in the relationship. The Appellate Court found that Ms. Johantgen was an employee under both tests because the nursing home controlled her hours and appointments, and provided the facility where she performed her services; and that there was economic dependency because both parties needed each other for the “services” that each provided. The finding that Ms. Johantgen was an employee enabled her to collect workers’ compensation benefits.
Contrast this case with another case where the worker was injured while providing cleaning services for a homeowner. She alleged she was a domestic employee under the Workers’ Compensation law, rather than an independent contractor. The Judge found that the worker was an independent contractor and not an employee mainly because she was not subject to any right of the homeowner to control the details of her work.
If you have questions regarding your rights under the Workers’ Compensation law, please contact me here in my firm’s Marlton, New Jersey office to set up a free consultation so we can discuss your case in more detail.
Many injured workers who are out of work collecting weekly workers’ compensation benefits wonder if they have to go back to work when the doctor releases them for light duty work.
The short answer is “Yes!” The workers’ compensation carrier has the absolute right to choose the treating doctor, and if that doctor (called the authorized doctor) releases the injured worker for light or modified duty, the employee is required to check with their employer to see if work that meets the doctor’s restrictions is available. If it is, the worker must to return to work. If light duty work is not available, the worker can stay out of work and collect weekly workers’ compensation benefits until the doctor says that the worker has reached maximum medical improvement (MMI).
In addition to terminating temporary disability benefits when the employee is at maximum medical improvement, an employer can terminate benefits when the employee can return to light or modified duty under Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986). The Court in Harbatuk stated that the employer has to offer a light-duty job to the employee in order to stop paying temporary disability benefits. If the employee rejects the light-duty offer, the employer can still terminate temporary disability benefits. Obviously, the light-duty job has to be one that meets the restrictions/requirements placed on the employee by the authorized treating doctor. And, if the employer has no light duty work available, they still have to pay workers’ compensation temporary disability benefits until the employee has reached maximum medical improvement.
I always tell my clients that they should not assume that the employer has no light duty work available. My advice is that the injured worker should check with their employer every time their doctor gives them work restrictions.
Interestingly, light duty is not defined in the New Jersey Workers’ Compensation Act. Therefore, if an employer can meet the doctor’s light duty restrictions by assigning the employee to a different job task than they were performing pre-accident, the worker still has to return to work. Unfortunately, the worker does not have the choice. If the employer offers light duty work that meets the restrictions of the treating doctor, the worker must do that job, or the worker will not be paid.
There are many issues that arise when a worker is returning to work after a work related injury. If you have questions regarding “light duty” and would like to discuss your case in more detail, please feel free to contact me or come in and meet with me here in my firm’s Marlton, New Jersey office for a free consultation.
In case you have heard the news, we now have an office in Woodstown, New Jersey for the convenience of our clients in the southernmost part of the State of New Jersey. We have several offices throughout New Jersey and Pennsylvania, and are ready to help you no matter where you reside.
If you get injured at work, and file a New Jersey Workers’ Compensation Claim, your case will be assigned to a Judge and to a court based on where you reside. In the southern part of New Jersey, all injured workers living in Salem and Cumberland counties have their cases assigned to the Workers’ Compensation Court in Bridgeton.
At the shore, if you live in Atlantic or Cape May counties, you case is assigned to the Workers’ Compensation court in Atlantic City. If you live in Ocean County, your case is assigned to the court in Tom’s River.
Injured workers residing in Gloucester county and Camden County, are assigned to the Workers’ Compensation court in Camden. If you reside in Burlington County, your case is assigned to the Workers’ Compensation court in Mt. Holly.
You may not know that all workers’ compensation cases are assigned to Judges in the above- mentioned counties so that the Judge can approve any settlement that is made. You cannot settle a workers’ compensation case “out of court.” Unlike a motor vehicle accident case, or any other type of negligence case --- where you simply sign a release at your attorney’s office to settle your case --- workers’ compensation settlements must be approved by a Workers’ Compensation Judge. This is so that the Judge can decide if the settlement is fair, reasonable and just under the New Jersey Workers’ Compensation Statute.
This is the case whether your case settles for a lump sum settlement, or for a percentage of permanent disability under the schedule of disabilities. If you have any questions regarding your rights under the workers’ compensation law please contact me to discuss your case in more detail.
As a Workers’ Compensation attorney, I get asked a lot of questions by injured workers wondering what their rights after they have been involved in an accident. One question I’m asked quite often is “Can I sue my employer if I’m injured at work?”
The short answer to this question is: NO. The exceptions are far and few between, but basically, the employee must prove that the employer knew with substantial certainly that an injury would occur. In most cases this is difficult for the injured worker to prove.
The leading case on proving an intentional negligence claim against an employer is Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161 (1985). In this case the employees were able to prove an intentional wrong by E.I. duPont in deliberately concealing medical evidence of work-related asbestos conditions in the work place. In Millison the court held that there is a two-part test to use when attempting to prove that the employer deliberately intended to cause harm:
In other words, those risks that are a normal risk of employment are not included in this exception.
Until 2002, the standard to decide whether conduct rose to the level of intentional harm was so difficult that in order to sue an employer, an employee had to prove that the employer created a virtual certainty of harm. The newer leading case is Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002). Mr. Laidlow worked as a setup man who had to insert metal bars into a channel that led to a rolling mill. He was severely injured when his glove got caught while pushing a bar and his hand got pulled into the roller. OSHA has previously noted this activity as a violation --- and the employer did not comply with OSHA’s citation --- thus causing the employee to get injured.
The employer argued that Mr. Laidlaw’s exclusive remedy was in the workers’ compensation court, and that he could not sue the employer because there was no evidence of intentional wrong. The Supreme Court rejected the “intentional wrong” test and laid out a new two-part test that requires “substantial certainty” of injury by the employer:
For information on this issue, feel free to contact me in my frim's Marlton, New Jersey office. I'd be happy to meet with you to discuss any questions you may have in more detail.
In today’s job market, this is an important question that I am often asked by my clients. The Workers’ Compensation statute, N.J.S.A. 34:15-39.1, prohibits the termination of an employee in retaliation for filing a Workers’ Compensation claim, and prohibits termination of an employee who has testified in a Workers’ Compensation hearing. While these actions on the part of the employer are prohibited, unless you have protection through a union collective bargaining agreement, your job may not be secure while you are out of work receiving Workers’ Compensation benefits. Your employer can let you go if they need to replace you at the workplace with someone else who is physically able to do the job. This does NOT mean that the employer is off the hook for workers’ compensation benefits. They must still provide medical care, temporary disability benefits, and permanency benefits, as they would if you were still employed.
However you may be entitled to job protection while you are out of work for a work-related injury under the Federal Family and Medical Leave Act (FMLA). The FMLA allows employees of “covered” employers the right to take unpaid, but job-protected leave if they are out of work for a serious health condition that makes the employee unable to perform the essential functions of their job. The protection under the FMLA covers 12 weeks, in a 12 month period. Employers can require employees to use up their FMLA time at the same time while they are out of work receiving Workers’ Compensation benefits. The FMLA offers job protection only for the specified period of time. While New Jersey has a separate Family Medical Leave Act, it cannot be used by an employee who is injured or ill and cannot work. The New Jersey Act only applies to employees taking time off to care for other injured family members, and in certain other cases. It is the Federal FMLA that may provide job protection to New Jersey employees when they are injured and unable to work --- since the New Jersey Workers’ Compensation statute does not adequately do so.
If you think that your employer is discriminating against you because of your disability, you may have additional rights under the Americans with Disabilities Act. Information on this Act can be obtained by contacting the Equal Employment Opportunity Commission for you region. Please contact Stark & Stark so that one of our experienced attorneys can answer your Workers’ Compensation questions.
The Camden County Bar Association’s Workers’ Compensation Committee presented a seminar on Hot Topics in Workers’ Compensation Law on June 14, 2011. The Honorable Richard E. Hickey III (retired), was one of the presenters, and gave an update on new cases that affect the practice of workers’ compensation law in New Jersey.
One interesting case is the recent case of Stancil v. ACE USA, 418 N.J. Super. 79 (App. Div. 2011). This case addresses a workers’ compensation carrier’s willful refusal to comply with the Order of a Workers’ Compensation Judge. The Appellate Division did not allow damages or allow relief for the pain and suffering this caused, and held that the only venue for the action (or inaction, as the case may be) of a workers’ compensation carrier is in Workers’ Compensation Court. The Court stated that N.J.A.C. 12:235-3.16, and N.J.S.A. 34:15-28.2 contain sufficient penalties to address the refusal to comply with the Order of a Workers’ Compensation Judge by a workers’ compensation insurance carrier.
The above rule and statute basically allow for a 25% penalty on any moneys due if the Judge finds that the payment was unreasonably delayed, and a $5,000 fine for unreasonable delay or continued noncompliance by the carrier. The $5,000 fine is not paid to the employee who is suffering in this process, rather to a state fund, the Second Injury Fund. In addition, the Workers’ Compensation Judge has the right to hold a contempt hearing.
Fortunately the Petitioner’s attorney in the Stancil case appealed the decision of the Appellate Division to the New Jersey Supreme Court. The New Jersey Supreme Court has agreed to take the case to address the limited issue as follows: Does an employee who suffers a work injury have a common law cause of action for damages against a workers’ compensation carrier for its willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes a worsening of the employee’s medical condition or pain and suffering?
We anxiously await the decision of the Supreme Court in this case. For updates on workers’ compensation law, or issues specific to your case please call one of our workers’ compensation lawyers at (856) 874-4443.
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