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Our Worker’s Compensation Act here in New Jersey contains a provision regarding Fraud. While many people assume it refers to false or misleading claims by workers, in reality it applies to employers as well. This was illustrated recently by two recent cases handled by the Office of the Insurance Fraud Prosecutor. In the first case a company under-reported the number of its employees and wages to its workers compensation insurance company. By doing so it gave the false impression to the insurance company that it was entitled to lower compensation premiums. The company pled guilty to this charge and was ordered to pay restitution to the insurance company in the amount of $75,000.

In the second case a company provided false and misleading information to its insurance company to lower its premiums. It not only under-reported the amount of its payroll but also misrepresented the type of work performed by its employees. In setting workers compensation insurance premiums insurance companies take into account the amount of employees, the amount of the payroll, the type of work performed, and other factors. In this case the Insurance Fraud Prosecutor determined the company stole a total of more than $315,000 from its worker’s compensation insurance company, and also failed to file tax returns and underreported wages to the State. In addition to restitution, the president of the company is facing the possibility of jail time.

These types of insurance fraud are clearly contrary to the intent of the New Jersey Worker’s Compensation Act, which is to ensure that injured workers are fairly compensated according to the law. Fraud by employers such as this clearly shows their contempt for this lawful process.

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

My employer, a retail store, is located in a large shopping mall. We do not have a separate parking area for our employees, but we are instructed not to park near the major entrances of the mall; we are to park near the access road, not near the entrances.  This is to allow our customers to park as close to the mall entrances as possible.  One morning while parking my car in the mall lot where I was instructed to park I slipped and fell. I broke my elbow and hurt my back. My employer denied me Workers’ Compensation benefits and told me to put my medical treatment through my private benefits and to apply for State Temporary disability. I was told my fall was not compensable since I had not yet clocked in and was still “commuting,” and that my employer did not control the parking lot. Is this correct?

In New Jersey commuting to and from work is controlled by the “going and coming rule.”  This simply means that accidents occurring during an ordinary commute and before the employee actually enters the employer’s premises are not compensable. However, there are exceptions. Here, although the employer does not own or control the lot, it does exert a measure of “control” over the employees by directing them to park in an area away from the mall entrances.  Our courts have carved out an exception to the “going and coming rule” where the employer “controls” the employee parking. The act of the employer directing its employees where to park should be sufficient to allow the fall to be considered compensable. Of course all claims are fact-sensitive. If you have any questions about a possibly work-related accident the Worker’s Compensation attorneys here at Stark and Stark are always ready to assist you.

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

A worker who is still under authorized medical treatment for a work-related injury is returned to a light duty job by the same employer. However, the light duty job pays half of her regular pre-injury salary. Is this permissible?

Under the New Jersey Worker’s Compensation Act, an employee who is kept out of work by his or her employer’s authorized treating doctors is entitled to receive a wage replacement called Temporary Total Disability. This is 70% of the worker’s average weekly wage up to a yearly maximum amount as set by the State. When he or she returns to work these payments generally stop. However, when the worker returns to work on “light duty” while still under authorized treatment, the employer must either accommodate the light duty restrictions or continue paying the worker temporary disability while treatment continues.

A problem sometimes arises when the employer can accommodate the light duty restrictions but pays the worker less than the temporary disability rate. There is no statutory provision directly addressing this problem. However, what happens in most cases is the employer’s worker’s compensation insurance company pays the worker the difference between the reduced light duty wage and the temporary disability rate.

For example, a worker is earning $600 per week. She is hurt on the job and put out of work by the authorized treating doctor. She is then paid temporary disability in the amount of $420 per week (70% 0f $600). She is then allowed to return to work on light duty with certain restrictions, but remains under authorized medical treatment. Her employer accommodates her restrictions in a light duty position which pays $300 net per week. In this situation the employer’s insurance company should make up the difference by paying $120 per week in temporary disability benefits while she is still under treatment. If the company will not voluntarily do so, the worker should immediately contact an experienced worker’s compensation attorney to take action to obtain the difference between the lower wage and her temporary disability rate. Stark & Stark workers’ compensation attorneys are experienced in these matters and are happy to assist injured workers obtain the full benefits they are entitled to.

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.

It’s summer again. What happens when injuries occur during company-approved or sponsored social or recreational activities?

Each year people are injured while participating in off-working hours social and recreational activities which are either sponsored by or approved by the injured worker’s employer. These activities include softball or basketball games, picnics, beach outings, etc. Most people assume that since the employer sponsored the event any injuries which are sustained while participating in the event are covered by workers’ compensation. This is not true in all cases. 

In New Jersey an injury sustained during one of these events is covered by workers’ compensation only if two tests are met.  First, the event in question must provide a benefit to the employer over and above employee health and morale. There must be evidence that the event provided an actual benefit to the employer’s business. For example, if an employer sponsors a softball game with a company for the purpose of generating more business with that company, this test is usually met. If however the game is just to give the employees a fun day off to improve morale, the test would not be met and injuries sustained would not be compensable.

The second test is that there needs to be some compulsion on the employee to participate in the event. To use the example above, the employees must be required, so to speak, to participate in the business event. If there is no compulsion on the employees, the event will probably not be covered by the Workers’ Compensation Act. 

Obviously each situation will be fact sensitive.  The Workers’ Compensation attorneys here at Stark & Stark are happy to answer any questions you may have about these issues.

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.

 

I was injured on the job in another state. However, I have always lived in New Jersey. Does the fact my home is here allow me to file my workers’ compensation claim in New Jersey?

The answer to this question is no, unless other facts are present which allow the New Jersey Workers’ Compensation court to hear your claim.  Merely living in New Jersey is not sufficient. Generally, for New Jersey to have jurisdiction over a compensation claim at least one of three tests must be met: 1. The injury occurred in New Jersey; 2. The employee was hired in New Jersey; or 3. The employee lives in New Jersey AND there are sufficient employment contacts in New Jersey. As you can see these are fact-sensitive and it is not always apparent whether sufficient contacts or facts exist to allow a claim to be filed in New Jersey. Anyone with these questions should call the experienced Workers’ 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.

I live in Philadelphia but I was hurt in Camden working for a North Jersey construction company. I received all my treatment in the Philadelphia/Camden area. When my attorney filed my claim petition the Court listed my case for hearings in Newark. Do I have to go all the way to Newark for my case?

This is a question we often receive.  The answer is no, you do not have to go to Newark. What happens in situations such as this is when a Claim Petition is filed the State computer automatically reviews it for the addresses of the petitioner and the employer. In this case the computer saw that the petitioner (the injured worker) lives out of state and the employer’s address is in Newark. It automatically listed the case for a hearing in Newark. Under our Worker’s compensation law cases are assigned to hearing offices around the state based on the county in which the worker lives. However, if he or she lives out of state and the employer is a New Jersey company the case will be assigned to the county where the employer is located. In this situation a Motion to Change Venue can be filed. This means the attorney will ask a Judge to move the case to a county in New Jersey close to where the worker lives. Such motions are almost always granted for the convenience of the injured worker. 

Alfred Vitarelli is a Shareholder and in the firm’s Marlton, New Jersey office, specializing in Workers’ Compensation. For more information, please contact Mr. Vitarelli

Filing a Motion to Change Venue for Personal Injury Claims 
I live in Philadelphia but I was hurt in Camden working for a North Jersey construction company. I received all my treatment in the Philadelphia/Camden area. When my attorney filed my claim petition the Court listed my case for hearings in Newark. Do I have to go all the way to Newark for my case?
This is a question we often receive.  The answer is no, you do not have to go to Newark. What happens in situations such as this is when a Claim Petition is filed the State computer automatically reviews it for the addresses of the petitioner and the employer. In this case the computer saw that the petitioner (the injured worker) lives out of state and the employer’s address is in Newark. It automatically listed the case for a hearing in Newark. Under our Worker’s compensation law cases are assigned to hearing offices around the state based on the county in which the worker lives. However, if he or she lives out of state and the employer is a New Jersey company the case will be assigned to the county where the employer is located. In this situation a Motion to Change Venue can be filed. This means the attorney will ask a Judge to move the case to a county in New Jersey close to where the worker lives. Such motions are almost always granted for the convenience of the injured worker. 

I am receiving periodic payments from my worker’s compensation award. I will continue to receive them for several years. It would be great if I could receive the payments in a lump sum. I have been looking into companies who buy judgments.  Can I do this in New Jersey?

No. Under the New Jersey Worker’s Compensation Law worker’s compensation payments must be periodic, which means weekly, and insurance companies must make payments in this manner. In addition, an award of compensation benefits can’t be assigned or attached, which rules out any attempt to “sell” or otherwise assign the award to a funding company. The only way to receive a lump sum when receiving periodic worker’s compensation payments is to formally apply to the Court for what is known as a Commutation. These are not allowed lightly; the Statute only permits commutations is rare cases where unusual circumstances exist.

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.

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.

I received a worker’s compensation award of 15% for a shoulder injury I sustained in 2006. I injured the opposite shoulder in 2010 and my case is ready to settle. If I am offered 15% for my 2010 claim will it be the same amount of money?

Worker’s compensation disability rates change from year to year. They are based on what is known as the “State Average Weekly Wage,” commonly known as “SAWW.”  To calculate a given year’s compensation rates the SAWW figure from two years previously is used. This amount varies. In 2006 the applicable SAWW (representing wages for 2004) was $920.88. This made 15% of partial permanent disability worth $16,560.00. In 2010 the applicable SAWW (from 2008) was $1,059.29.  15% of partial total was $19,080.00. Of course, these figures assume the injured worker earned a wage sufficient to entitle him or her to these rates. If the worker earned a low wage it is possible the above award figures would be lower.

Traditionally, the State Average Weekly Wage has gone up from year-to-year. However, from 2008 to 2009 the SAWW actually dropped by a small amount, resulting in a slightly lower compensation rate in 2011 than in 2010. This was a reflection of the economy.

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.

I have previously received partial permanent awards for back and shoulder injuries. I then injured my hand in a work-related accident and my case is ready to settle.  Are hand injuries compensated in the same manner as back and shoulder injuries?

The short answer is no.

In New Jersey, not all body parts are “worth” the same amount in terms of partial permanent disability. We have a system which is basically divided into two groups of injuries: “scheduled” and “non-scheduled.”

Scheduled injuries include hands, arms, fingers, legs, feet, toes, eyes and ears. Each scheduled part is assigned a certain number of weeks of disability under our Worker’s Compensation statute.

Non-scheduled parts include the spine, neck, shoulders, nervous system, etc. These injuries are awarded based on 600 weeks, and are described in terms of partial total disability. For example, the hand is assigned 245 weeks. An award of 10% of the hand is 24.5 weeks, paid in a given year’s rate of disability. The award would be called “10% disability of the statutory hand.” In contrast, an award of 10% for a low back injury is 60 weeks. It would be called “10% partial permanent disability for an injury to the low back.”

There are exceptions to this. One major exception is when two “major” scheduled members are involved, such as hands or legs. In that situation, the award of disability will usually be expressed in terms of partial total.

In any situation, in order to ensure you are awarded the maximum benefit the law provides, you should always consult an experienced worker’s compensation attorney. The workers’ compensation attorneys here at Stark & Stark are ready to answer your questions and provide quality representation.

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