Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims.
Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide.
Greg can be reached at 201-880-7213 or firstname.lastname@example.org
The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:
Scheduled loss of use.
Permanent Total Disability.
The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.
Scheduled Loss of Use.
Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award. Continue reading Explainer: Permanency Benefits in New York→
What does the petitioner have to pay back when a settlement is reached in a New Jersey workers’ compensation case?
Has to be paid back: State Disability
Any petitioner’s award is offset by any amounts paid to the petitioner by State Disability as provided by N.J.S.A. 34:15-57.1. Temporary disability paid by the state for injuries later deemed compensable or settled via Section 20 must be reimbursed to the state. Before settling a case, counsel should be expected to investigate all outstanding liens. The New Jersey workers’ compensation law judge can provide the parties with the amount of the State temporary disability lien at the time of settlement.
Has to be paid back: Health Insurance
By the very terms of the Act, workers’ compensation insurance is primary to medical insurance. Therefore, any amounts paid on behalf of the petitioner for treatment deemed by a judge “reasonable and necessary” to cure the petitioner of the effects of the work-related accident, can be collected by the health insurer at the time of settlement, or later. Recent case law instructs that even matters disposed of pursuant to Section 20 may not extinguish a health insurer’s lien. Continue reading Settlements in New Jersey: What gets deducted?→
Decisions of a Workers’ Compensation Judge are appealable directly to the New Jersey Appellate Court. An appeal of the Workers’ Compensation Judge’s opinion must be made within 45 days of the entry of the final order. How does the appeals court rule where there was a disagreement between the doctors who testified in the workers’ compensation case?
The Scope of Review.
The scope of review by the Appellate Division is “the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.” Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964).
This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.
As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.
Simply stated, a commutation is the legal term for a petitioner asking the court to accelerate the payment of an award to answer some pressing need of the claimant.
Commutation reduces exposure in two ways:
Any commuted payment made is discounted 5%. Therefore, payments of compensation which are made under Order For Commutation save the insured money. (So, a commutation reduces the amount the respondent has to pay).
The payment of commutation is deemed to shorten the period of overall benefits. A claimant, under the New Jersey Workers’ Compensation Act, has two years to re-open a claim from the time the last payment was paid. By commuting payments, the period for re-opener is shortened.
Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the “going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no door-to-door coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not arising out of and in the course of any particular employment.
Exceptions to the Going-and-Coming Rule
Of course, there are exceptions. For example:
Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations. (See Bennett v. Marine Works, 273 N.Y. 429 ).
Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links to the employer’s office, making injuries in those locations compensable.
Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a special hazard. (See Bigley v. J & R Music Elec., 702 N.Y.S.2d 474 [3d Dep’t 2000].)