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.