Personal Injury Law Journal

I have met with several new clients lately who have come in to meet with me strictly to settle their workers compensation cases. Now, this is perfectly acceptable both practically and legally, it’s just not the usual course of things. Generally a client comes in to file a workers’ compensation claim when there is a new accident, a need for treatment, a problem with medical bills getting paid or some other issue with their case. We then file the claim petition and start working on their case, requesting treatment, collecting records, filing motions, all depending on what is needed in a particular case.
                            
In these recent cases, however, the petitioner has already completed all of his/her treatment and all I have to do is settle their case. Sounds easy enough. Well it is, but it still involves some work. Once I meet with the client, I have to file a claim petition with the Division of Labor. Then I need to collect all of their medical records for the injuries related to the work accident. This is often the longest part of the process. If the treatment was authorized by the workers’ compensation insurance carrier, we request the records from them directly. If not, we have to write to each medical provider and request the records from the doctor’s offices. Many doctor’s offices are notoriously slow at responding to requests for medical records. Once we have all of the medical records we set up an evaluation with an independent medical evaluator for a permanency exam. Generally these doctors schedule their exams two to three months in advance. Then we write a summary of the medical records to send to the evaluator along with some information about your accident and the job you were performing at the time of the accident.

It can take a month or more to receive the report from the independent medical evaluator. When we have that report, giving a percentage of disability, we are ready to go to court and begin settlement negotiations on your behalf. Of course, the insurance company has to send you to their independent medical evaluator for an exam too and this can take an additional few months to complete. Often though, the insurance company is able to set up their exam first since they have all the medical records to start with.

Now that both sides have permanency evaluations, the parties can go to court and begin negotiating towards settlement of your case. We have to wait for the case to come up on the court list and this happens in 3 week intervals. The petitioner’s attorney makes a demand to the insurance company and most of the time the respondent attorney has to bring the demand back to their client and seek authority for settlement. Then the respondent’s attorney comes back with authority and presents their offer of settlement. The petitioner’s attorney is obligated to relay any settlement offers to their client. We always call our clients in to the office to meet face to face and review the settlement offer. That way we are better able to review medical records with you and answer any questions you may have about the proposed settlement. If we feel that the settlement offer is fair and appropriate we will recommend that you accept it. If not, we will suggest that you turn it down and either go to trial or see if we can re-negotiate the settlement, possibly with the input of the Judge of compensation.

Once all of that is complete, the case is ready to be settled in court before the Judge. So even though these clients came in at the end of their case, there was still a lot of work to do and it can take six months or longer to get it all done and the case ready for settlement.

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

In a previous blog post I discusses wage reconstruction in workers’ compensation cases. I would like to point out that there is a slight difference in the way an injured workers’ wages is constructed when that employee is a part time employee with no full-time work. In this case, a judge of compensation must employ the principles of "fairness and equity" in determining if the circumstances warrant reconstruction of a part-time worker's wages. However, the Appeal court drew a distinction, as did prior cases, for part-time workers - concluding that reconstruction is appropriate when the "permanently disabling accident 'prevents or interferes with later full-time employment.'" (Citing Engelbretson v. AM. Stores, 49 N.J. Super. 19 (App. Div. 1957) aff'd, 26 N.J. 106 (1958).

Determining the 'rate' at which compensation should be paid is often the central issue in claims involving part-time workers. If a worker makes $100 a week as a part-timer, the permanent disability rate (the rate at which permanent disability benefits is paid) would be $70 per week. For an award of 20% of the leg (at the 2011 rates) a part-time worker earning $100 per week is due an award of $4,140.00. A full-time worker, earning wages greater than $290 per week, would be due a "full" statutory award of $13,293.00.

There are many instances where a judge of compensation is persuaded to "reconstruct" a part-time wage into a full-time wage. This results in a much-higher award (in our example, $4,140 versus $13,293). The Judge of Compensation can be persuaded to "reconstruct" wages to a full-time rate because the law allows for wages of a part-time employee may be reconstructed for purposes of fixing the rate for permanent partial disability in accordance with N.J.S.A. 34:15-37 based upon "diminished future earning capacity." 

However, there are equally many cases where the Judge will determine wage reconstruction is not appropriate. Here is an example of a case where wage reconstruction was rejected. In Gruzlovic v. Giovani's Trattoria, A-1519-08T1 (App. Div. Decided April 15, 2010), the appeals court reviewed the decision of a Judge of Compensation who had "reconstructed" part-time wages of a cafeteria worker, resulting in an increased award. The claimant in this case was a 76-year-old woman who worked nine hours per week, earning $10.50 per hour (average weekly wage of $94.50). During the thirteen years the claimant worked for the employer, she did not have or seek additional part-time employment. After the accident at work, the claimant no longer worked, stating simply, "I thought I had my share [of work]." The Judge of Compensation awarded the petitioner 25% permanent partial benefits, and "reconstructed" the rate so that the claimant received the "full" statutory award ($30,420). The Appeals Court overturned this ruling, and ruled that the claimant was only due an award on her part-time work - which would equate to 150 weeks of benefits payable at $66.15 per week, totaling $9,922.50.

In Gruzlovic, the Judge of compensation was reversed and the wage reconstruction was remanded for further proceedings. The Judge was asked to find out whether the accident and resulting residual disability "had any impact on the petitioner’s capacity or inclination to work full-time as opposed to part-time. Based on the fact that the claimant had only worked one day per week for the thirteen years leading up to the accident, the Appellate Court stated 'there is no basis for an inference" that she would have pursued other full- or part-time jobs "but for" her partial disability. The Appeals Panel further stated "when an inference of a loss of potential full-time employment attributable to the accident is not available from the evidence presented, principles of fairness and equity developed to compensate for that lost potential are not implicated and reconstruction of wages is not appropriate."  

The attorney’s at Stark & Stark are familiar with the issue of wage reconstruction. If you have questions about your case or would like to discuss your case in more detail, contact me for a free consultation here in my firm’s Lawrenceville, New Jersey office.     

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

Missing time from work can be costly. If you miss time due to an injury that occurs while performing your role as a volunteer firefighter or rescue squad worker, you will receive the maximum weekly benefit rate available to injured workers in New Jersey. The workers’ compensation statute provides these benefits to all volunteer fire, first aid or rescue squad workers. Public employers aren’t always so willing to provide these benefits to their volunteers.    

Normally, out of work benefits are based on your average weekly wage. So if you are injured at work and earn $700, your temporary disability rate would normally be $490 per week. In 2012, if you are injured while in the performance of your volunteer duties, you will receive $810.00 per week.

You might think a municipality, county or state agency would protect its volunteers, unfortunately this is not always the case. The simple reason is Money. Public employers are increasingly attempting to cut costs, and weekly benefits are an easy target. Our firm has successfully represented clients in which the municipality claims the volunteer was not in the line of duty when injured and not entitled to the full rate. Municipal employers have also been known to just base the weekly rate on a volunteer’s earnings from his or her actual job. This often results in a significantly reduced weekly rate.   

If you’ve been injured while serving in a volunteer capacity, you need to know your rights. State statue calls for volunteers “doing public fire duty” and “doing public first aid or rescue duty” to receive the maximum benefits available under the law. Public employers need to cut costs wherever they can, and injured volunteers are often an easy target. The activities covered are not limited to injuries suffered responding to a fire, accident or emergency. Construction work on a firehouse, repair work on vehicles and apparatus, participation in search and rescue task force, exhibitions, fund raising and parades are some of the examples in which Volunteers are entitled to this benefit.   

The statute also covers volunteers performing work related to bioterrorism, volunteers working for the Department of agriculture and emergency management volunteers and many other public volunteers.   

Volunteers perform high risk work, which means the injuries can be severe. The worse the injury, the higher the likelihood you will need to miss time from work. At Stark & Stark, our job is to make sure you receive the maximum benefits you are entitled to.

James Creegan is a Shareholder in Stark & Stark's Lawrenceville, New Jersey office concentrating his practice in Workers' Compensation law. For questions, or to schedule a free consultaiton with Mr. Creegan, please contact him at: jcreegan@stark-stark.com.

Arthur Kravitz, Shareholder in Stark & Stark’s Workers’ Compensation Group, was quoted in the April 6, 2012 Lawyers.com article, The Privacy Dangers in Workers’ Comp. The article discusses the fact that when someone is injured at work, their privacy, in relation to their medical history and personal life, is often times invaded by insurance companies looking for evidence that can be used to deny their workers’ compensation claim.

Mr. Kravitz states, “What we’re seeing now are requests to rifle through records going back 10 or 20 years that often have no relevance to the claim. The second major privacy issue with workers’ compensation is the increasing use of social networks to investigate claimants. In some cases, insurers are even asking for the passwords to their claimants’ private Facebook accounts.”

You can read the full article online here.

I was injured at work and have continuing problems but was able to return to my job. My brother-in-law who lives in another state has a similar injury and also returned to his job. He told me that since I returned to my job I am not eligible for any permanent disability. Is he correct?

The answer is NO.

States differ in how they measure and award disability payments. In the case of the brother-in-law his state Worker’s Compensation law probably has what is known as a loss of income or loss of earnings rule. This means that if a worker is able to return to work without loss of income or earning capacity no permanent disability is awarded.

That is not the law in New Jersey, which has a “functional loss” rule. The New Jersey statute allows a payment of partial permanent disability where the worker is able to return to work. The law defines partial disability as:

“…a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings.”

In order to prove permanent disability there must be medical proof in the form of a doctor’s opinion.

Of course, not everyone who has continuing problems qualifies for disability payments. The law also states that minor lacerations, sprains, etc. do not constitute permanent disability. If you have any questions or concerns about whether you qualify for a payment of disability please call the worker’s compensation attorneys here at Stark & Stark.

Al Vitarelli is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Vitarelli.