IF YOU’RE INJURED ON THE JOB, BY AN ACCIDENT, OR BY AN OCCUPATIONAL DISEASE:
WHAT ARE YOUR RIGHTS FOR WORKERS’ COMPENSATION AND YOUR JOB SECURITY?
THE INJURED WORKERS BILL OF RIGHTS
Virtually all workers in N.J. are entitled to workers’ compensation (“WC”) benefits if suffering an accident or become illness because of work.
WHAT SHOULD I DO?
First, and foremost, an injured worker is entitled to medical treatment to cure or relieve the impact of the work-related injury.
WORKERS’ COMPENSATION
REPORT THE INJURY OR OCCUPATIONAL DISEASE
Report the injury to the company even if you think the injury will not result in more than temporary pain or discomfort.
N.J. W.C. law requires that a worker report the injury or occupational disease within 90 days from when the worker knew or should have known of the injury or illness. Failure to report the accident will result your company or its insurance company refusing to pay the injured worker.
An exception to this rule is that if a worker suffers an occupational injury, the workers have two years from when the occupational disease is fully manifested to file for workers compensation.
An example of this law is Earl v. Johnson and Johnson, 158 N.J. 155 (1999). Ms. Earl worked in a dusty room at J&J and developed asthma. She knew that her breathing condition was caused by her work. She asked to be moved away from the room, and J&J moved her to a different job.
However, her asthma got worse despite being in a cleaner work environment. Ms. Earl did not file a Workers’ Compensation case for four (4) years from where she knew fully well that her asthma was work related. Ms. Earl finally filed for Workers’ Compensation when her asthma, four years later became fully developed. The N.J. Supreme Court held that Ms. Earl could collect because workers often don’t file every time , for example, they cough but rather wait to see if the condition will improve.
Our law firm filed a friend of the Court brief for the N.J. Council on Safety and Heath, a pro- worker legal and medical association, arguing that Ms. Earl’s case should be permitted to collect workers’ compensation benefits for her asthma.
GET NEEDED TREATMENT
Frankly, the hardest part of Workers’ compensation is for injured workers to get adequate treatment.
Too often, insurance companies send injured employees to a clinic where the worker does not get the needed treatment. Medical groups, like Concentra, sometimes do not give adequate treatment from an appropriate medical professional.
One recent example is a United Air worker who injured his back in an admitted accident. United initially gave the worker physical therapy. Ultimately, United’s doctors sent this worker to orthopedic doctors who gave him three separate injections or three different dates. After each injection, the worker ended up in the Emergency room because of the reactions to these injections.
When our client wasn’t getting any better, we referred him to Dr. Stephen Hale in Bergen County N.J. Dr. Hale gave our client injections that immediately relieved much of our client’s pain. Our client paid for Dr. Hale’s injection, but we believe that the Judge of Workers’ Compensation will order United to pay back our client. One of the lessons here is that workers should be persistent in getting treatment if needed.
THE MONEY THAT AN INJURED WORKER IS ENTITLED TO WHILE OUT OF WORK
When a worker is out of work, the worker is entitled to temporary Workers’ Compensation benefits after seven (7) days lost time. The maximum amount of money that an injured worker is entitled to receive is 70% of the gross weekly wages, including overtime pay, before all deductions up to $1,159 per week. Temporary Workers’ Compensation (“TWC”) payment is tax free.
If the employer refuses to pay the workers, the worker should do two actions immediately. First the Worker should file for Workers Compensation by having retained an WC lawyer file a Claim Petition. Our law firm often prepares the Claim Petition and emails it or sends it to the client by fax or regular mail. The injured workers then gets it signed by calling our office and asking one of our paralegals to take an oath over the phone.
In order to get TWC, we need a letter from a physician answering the following five questions:
- What is the Petitioner’s Diagnosis?
- Is the Petitioner totally disabled from work at this time?
- In your opinion, and in light of the history that the Petitioner gave you, was the injury caused, aggravated, or accelerated by his work?
- Does the Petitioner now need treatment, if so what treatment?
- Has your bill been paid, and if so, by whom?
As soon as we get the doctor’s letter, we file a Motion for Temporary Workers’ Compensation.
The Motion is listed before a Judge of WC which, is only the beginning, of the process all too often. The employer or the WC insurance company belated set up an examination by its doctor. Sometimes the insurance company’s doctor agrees with the workers and agrees to pay for treatment.
When the employer refuses, the case is listed before the Judge of Workers’ Compensation, and in four or more weeks when the Judge will try to address the issue.
In a current case, a very well paid, highly educated, and skilled truck driver making over $89,000 per year, suffered an admitted injury to his knee. The Company’s orthopedist operated on our client’s knee which operation did not work. The injury got worse. Our client went to another Board-Certified orthopedist who agreed that our client’s knee required a total knee replacement which was caused by his work related injury. When the Company didn’t agree to pay for the total knee, our firm filed a Motion for Medical Treatment and Temporary Compensation. The Chief Judge and Director (“CJD”) of the Workers’ Compensation ordered that her own selected Board-Certified Orthopedic Surgeon examine our client. The CJD’s selected physician agreed that the admitted injury resulted in the need of this worker for a knee replacement. This case is ongoing, but we’ll bet 50 to 1 that the client will get this knee replacement paid entirely by the company, temporary workers’ compensation and some permanent compensation after he returns to work. And we firmly believe that our client will not have to pay our firm any money for the attorney’s fees: CJD will order this employer to pay 100% of the attorney’s fees to our firm.
Partial Total Disability
In the three cases described about, each injured worker received, or will almost certainly, partial total disability.
For example, If Ms. Earl today would receive after toing to court, for her asthma somewhere between $27,000 to $105,000 for her serious asthma even though she returns to work. We anticipate that our United workers may receive between $33,000 to $45,000 for his herniated disc injury after he returns to full time duty.
And our truck driver client, we believe will get $38,000 to $45,000 after he recovers from his total knee replacement operation.
TOTAL DISABILTY
Unfortunately, some of our clients, all too many, are never able to return to work following an injury. These clients may receive treatment for the injury for life and up to $ 1,159 for a 2025 accident.
These payments are tax free and are received for as long as the worker does not return to work or until death. Additionally, the totally disabled worker may receive regular Social Security, long term disability, and or pension, if the worker is in a plan.
Workers injured in 2024 may have some of their benefits paid by the N.J. Second Injury Fund (“SIF”). The SIF may contribute to the total disability if the worker had disabilities which contributed, with the work-related injury or disease, to the worker becoming totally and permanently disabled. Trying to get the SIF to contribute may be necessary but is always very slow. Many years most time. The SIF is short of lawyers and staff to be able to address all the cases that are now filed. Additionally, COVID 19 brought literally thousands of new unexpected cases to the Division of Workers’ Compensation.
JOB SECURITY FOR THE INJURED WORKER
When a worker is partially disabled, from a work related or not work-related condition the worker has to do his or her very best to return to work. The employer must also offer the disabled worker a reasonable accommodation to his or her disability. This is not directly covered by N.J. Workers’ Compensation Act but rather by the N.J. Law Against Discrimination.
That law and regulations issued under that law, require the employer and the disabled workers to work on an regular basis to get the disabled worker back to work.
Injured workers can learn about the NJ LAD by looking at the website: https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/know-the-law/
CAN A WORK DISABLED WORKER BE FIRED FOR FILING A WC CASE
WC law prohibits an injured worker from being fired because her or she files for Workers’ Compensation. See N.J.S.A 34:15-39.1.
First, if you are in a Union, the contract may provide explicitly or implicitly that no covered worker may be fired except for good cause. A disability includes work related reasons. As a practical matter, very few employers are dumb enough to fire an injured Union worker because he or she files for Workers’ Compensation.
Second, if you are not covered by a Union Contract, you and your fellow workers should join a union. For example, any years ago, Black Car limousine drivers who worked for Elite Limousine Plus (“Elite”) came to our firm to sue Elite for not paying them properly and for other illegal treatment. These workers brought a class action suit against Elite. But our firm also formed a union which filed for a Union election at the U.S. National Labor Relations Board (the “NLRB”). The NLRB ordered an election which the Union won by over 66%.
Ultimately, we introduced the Union to the International Association of Machinists which represented the Elite Drivers. When thousands of other limousine drivers in NJ and NY learned of the Limousine Drivers Union and contract, they also joined the Machinists Union which until today represented many drivers. Full Disclosure: our firm represents the New Jersey Council of Machinists and believes that it is one of the strongest, most powerful Unions in America.
