An employee is injured while doing his job. He has a minimally fractured ankle which puts him out of work for four weeks and on light duty for another six weeks thereafter. A claim is filed with the employer’s workers compensation insurance company who sends the employee to an authorized orthopedic doctor and the insurance company pays for the bills. Additionally the insurance company pays for temporary disability for the employee in the amount of 70% of the employee’s wages. Once the employee is back to light duty the insurance company is off the hook for temporary disability wages. So once the insurance company pays for all medical bills and the temporary disability payments is the insurance company done? The answer is most definitely not.
Portnoi Law is a premier workers compensation attorney in Union, NJ. Our experienced Workers’ Compensation Attorney in Union, NJ are dedicated to fighting for the rights of injured employees and helping them get the just compensation they deserve.
In New Jersey the Worker’s Compensation system is fundamentally based on “functional loss.” That is, an “employee” is entitled to “permanent disability compensation” if he or she has a loss of function on a permanent basis. The legislature has adopted a disability chart which is updated annually to account for inflation. This chart accounts for all body parts and has a column for “partial total” which includes the head and torso (meaning back, neck, hips, pelvis etc.). A person considered 100% of total disabled would be entitled to disability payments for the remainder of his or her life. A person who has a partial disability (such as the employee who has a minimally fractured ankle above) would be likely entitled to a permanent disability award of a percentage of the foot. That percentage would be paid for a determined number of weeks only. This is determined by a Judge of Worker’s Compensation or approved by the Judge after negotiation between the attorneys for the Petitioner (the injured party) and the Respondent (the attorney representing the Employer/ Insurance Company). The Governor appoints these Judges to a term after which they may obtain a tenured position as a Worker’s Compensation Judge of the State of New Jersey. This system is different from those State systems based upon “Wage loss”. In wage loss States, such as New York, the employee’s entitlement to worker’s compensation is entirely based upon his determined future wage loss. For instance, an accountant who severely injures his ankle in a “wage loss” State may not be entitled to a permanent disability award as he can still do his accounting whereas an ironworker who has the same injury may be entitled to a very significant award as this injury drastically affects his ability to earn an income into the future. In essence, the New Jersey system attempts to treat all employees the same where as the “wage loss” States will have huge discrepancies between payments for the same injuries depending upon the earning status of the persons involved. While neither approach is correct it is for the Legislature to determine which approach works the best for the majority of the employees in a given State. Apparently, New Jersey has determined that the “functional loss” approach is best for this State.
So back to our situation with an employee who has a minimally fractured ankle. Based on New Jersey law he/she is entitled to “permanent disability” award. While not a huge amount is warranted, the statute does provide that “functional loss” is to be compensated. How is that accomplished? The attorney has the Petitioner examined by a workers compensation evaluating physician who determines a disability rating. The respondent/Insurance company does the same. Thereafter a negotiation ensues and if an agreement cannot be reached the matter proceeds to trial before a Workers Compensation Judge. Should an injured party not go forward for a permanent disability award what is the consequence? Does the employer benefit? No- The employer has already been assessed for the injury due to the claim already being made and the insurance company paying out money for temporary disability payments and medical payments. The employee would not receive money he/she is entitled to under our Statute and that creates a hardship for the employee who might not have even known of his/her entitlement. The real beneficiary of the failure to make a claim for permanency benefits would be a workers compensation insurance company who still assesses a premium increase after a claim and yet does not pay permanency benefit to the injured party. Unfair? You bet it is.
Should anyone have any questions regarding this article or need to discuss a claim please call Mitchell Portnoi at 908-228-8800.
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