All posts by Michael Gervolino

Michael Gervolino is an associate attorney at Lois LLC where he defends employers and carrier in New Jersey workers’ compensation claims. He can be reached directly at mgervolino@lois-llc.com or 201-880-7213.

Can an Incapacitated New Jersey Beneficiary Receive Dependency Benefits for Life?

Michael Gervolino, Esq.
Michael Gervolino, Esq.
The New Jersey Workers Compensation Act specifies that in the case of total disability, the petitioner is entitled to payments for a period of up until 450 weeks. See N.J.S.A. 34:15-12(b). If the petitioner perishes as a result of his workers compensation injury, the Act provides us with guidance for the petitioner’s dependents at the time of death. For example, in the case of a surviving spouse, the Act directs us to N.J.S.A. 34:15-13(j), which states that the surviving spouse shall receive payments for the “entire period of survivorship or until such surviving spouse shall remarry.” See N.J.S.A. 34:15-13(j).

In the case of children as dependents, the plain language of N.J.S.A. 34:15-13 tells us that us that they are entitled to payments up until the age of 18, unless they are physically or mentally deficient which would allow them to collect on the “full compensation period of 450 weeks.” See N.J.S.A. 34:15-13(i). The plain meaning of this statue leads one to interpret the language as limiting disabled dependents to 450 weeks of compensation following the death of the petitioner, unless they are a surviving spouse.

In the case of Apperman v. Visiting Nurse Ass’n of Westfield, a father and son challenged this interpretation of the statute by arguing that a disabled dependent is entitled to benefits for the entirety of his life. Continue reading Can an Incapacitated New Jersey Beneficiary Receive Dependency Benefits for Life?

New Jersey Workers’ Compensation Indemnity Benefits

In New Jersey, workers compensation benefits are basically broken down into two broad categories, medical benefits and indemnity benefits. Medical benefits are designed to provide the petitioner with payment for all medical expenses incurred as a result of a work related injury. Indemnity benefits, generally, are benefits paid to an injured worker to replace part of the worker’s lost income. There are three types of Indemnity benefits in New Jersey, temporary total disability, permanent disability benefits and dependency benefits.

Temporary disability benefits refer to the temporary payment of income to the petitioner while he is unable to work. The payment of temporary disability benefits is mandatory under N.J.S.A. 34:15-38, which essentially states that temporary disability payments of 70% of the injured worker’s wages for the year in which the injury occurred or his occupational disease manifests are payable until he is “able to return to work.” Please note that these wages are subject to the annual statutory minimum and maximum, which change every year. In 2016 the maximum rate of temporary total disability is $871 per week; the minimum rate was $232 per week.

Continue reading New Jersey Workers’ Compensation Indemnity Benefits

Calculating Temporary Disability Benefits in New Jersey Workers’ Compensation

The New Jersey Workers Compensation Act recognizes three types of indemnity benefits: temporary disability, permanent disability and dependency benefits. For each of these benefits, the benefit rates will be determined based off of the petitioner’s wage rate or average weekly wage at the time of the loss. Therefore, in order to calculate the petitioner’s temporary disability benefit rate, it is important to first calculate the petitioner’s wage rate or average weekly wage.

The petitioner’s wage rate or average weekly wage is simply the amount of money the petitioner makes in an average work week. In New Jersey, when the petitioner’s wage rate varies from week to week, employers will use a 26 week or 6 month analysis to determine the petitioner’s average weekly wage rate for which the petitioner gets paid. Simply stated, an employer may add the petitioner’s last 26 weeks of wages together and divide that number by 26. For example, if the petitioner made $500.00 on odd weeks and $700.00 on even weeks, for 26 weeks, the petitioner would have an average weekly wage of $600.00. This was equated by adding together the 13 weeks of wages at $700.00 with the 13 weeks of wages at $500.00 and dividing that number by 26.  Continue reading Calculating Temporary Disability Benefits in New Jersey Workers’ Compensation

Available Defenses In New Jersey Workers’ Compensation Claims

In New Jersey, when an employer is faced with a claim for workers’ compensation benefits they may raise a number of defenses in order to avoid liability. These defenses include, but are not limited to, the defense of Employee Status, Statute of Limitations, Notice and Knowledge, Intervening Cause and Intoxication. Although the defenses are not limited to these five, this article will only explore these five in the hope of providing employers with a brief understanding of their potential defenses against workers’ compensation claims.

Employee Status

Probably the most commonly used defense, is the defense of Employee Status. This defense essentially prevents anyone who is a non-employee from bringing a workers compensation claim against an employer. An employee under the Workers Compensation Act is defined as someone who performs a service for an employer for financial consideration. N.J.S.A. 34:15-36. This definition, as you can see, is extremely vague and is not so easily distinguishable. People who fall into the category of a “casual employee” or an “independent contractor” are not employees for the purposes of this act. Please note, that although this defense prevents a person who is not an employee from bringing a claim under the Workers Compensation Act for injuries sustained at work, this defense does not prevent the person from bringing a tort lawsuit.

Statute of Limitations

Statute of Limitations, is a defense that is found in almost every area of law. This defense simply states that a claimant must bring their claim within two years of an accident or the last payment of compensation. If the claim is not brought within the two years as described above, the claim will be lost. Continue reading Available Defenses In New Jersey Workers’ Compensation Claims