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 NJ are entitled to Workers’ Compensation benefits if suffering an accident or 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.
NJ WC law requires that a worker report the injury or occupational disease within 90 days from when the worker knew of the injury. Failure to report the accident may result in your company or its insurance company refusing to pay you as an injured worker.
An exception to this rule is that if a worker suffers an occupational injury, the worker has two years from when the occupational disease is fully manifest to file for Workers’ Compensation.
An example of this law can be found in a case you anyone can find online. 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, Ms. Earl’s asthma got worse despite being in a cleaner work environment. Ms. Earl did not file a Workers’ Compensation case for 4 four years from when she knew full well that her asthma was work related. That is, Ms. Earl filed for Workers’ Compensation four years later when her asthma became fully developed. The NJ Supreme Court held that Ms. Earl could collect because workers often don’t file every time they have a work-related problem. For example, they cough but rather wait to see if the condition will improve. To pat our law firm on our own back, our law firm filed a Friend of the Comi brief for the N.J. Council on Safety and Heath, a pro-worker legal and medical association, arguing that Ms. Earl’s case should win. Ms. Earl won her case.
GET NEEDED TREATMENT
Frankly, the hardest part of Workers’ Compensation is for injured workers to get adequate
Too often, insurance companies send injured employees to a clinic where the worker does not get the needed treatment. Groups, like Concentra, sometimes do not give adequate treatment from an appropriate medical professional.
Once recent example is a United Airlines 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 terrible reaction to these injections. \
When our client wasn’t getting any better, we referred him to a highly regarded Board Certified Orthopedic surgeon in Bergen County, N.J. He gave our client treatment that immediately relieved much of our client’s pain. Our client paid for the treatment’s co-pay out of his pocket, but we believe that the Judge of Workers’ Compensation will order United to pay back our client and the health insurance company. One of the lessons here is that workers must be persistent in getting treatment if needed.
THE MONEY THAT AN INJURED WORKER IS ENTITLED TO WIDLE OUT OF WORK.
When a worker is out of work, the worker is entitled to temporary Workers’ Compensation benefits after seven days lost time. The maximum amount of money that an injured worker is entitled to receive is in 2025 is 70% of the gross weekly wages, including overtime pay, before deductions up to $1,131.00 per week. The Workers’ Compensation payments are tax free.
If the employer refuses to pay the injured worker, the worker should take two actions immediately. First, the worker should file for Workers’ Compensation by retaining a Workers’ Compensation lawyer to 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 worker then gets it signed and notarized sometimes by calling our office and asking one of our paralegals to take an oath over the phone.
In order to get Temporary Workers’ Compensation, up to a maximum each year, we need to have 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 responsive letter to these questions, we file a Motion for Temporary Workers’ Compensation and medical treatment.
The Motion is listed before a Judge of Workers’ Compensation which, is only the beginning of the process, all too often. The employer or the Workers’ Compensation Insurance Company will usually belatedly set up an examination by its doctor. Sometimes the insurance company’s doctor agrees with the worker’s doctor and agrees to pay for treatment. Only sometimes. When the employer refuses to provide treatment, the case is listed before the Judge and a conference is held in four or more weeks when the Judge will try to resolve the issue.
Second, while the Motion for Tempora1y Workers’ Compensation is pending, the workers should file an application for Temporary Disability Benefits from the State of New Jersey. We will prepare the mandatory “Certification of Contested Workers’ Compensation Claim” which the injured worker must sign and return to us.
In an ongoing case, a very well paid, highly educated and skilled truck driver making over $85,000 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 knee got worse. The Company’s doctor said our client needed a total knee replacement, but the needed operation was not work-related. 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 replacement, our firm filed a Motion for Medical Treatment and Temporary Compensation. The Judge of Workers’ Compensation ordered that her own selected Board-Certified Orthopedic Surgeon examine our client. The Judge’s selected physician agreed that the admitted injury resulted in the need of this worker for a knee replacement. In August of 2024 the employer surrendered his company, Temporary Workers’ Compensation and some permanent compensation will be paid. And we firmly hope our client will not have to pay our firm any money for attorney’s fees and for any work to date, we hope: the judge will order this employer to pay 100% of attorney’s fees.
PARTIAL TOTAL DISABILITY
In the three cases described above, each injured worker received or will probably receive partial total disability.
For example, if Ms. Earl’s asthma in 2024 was fixed, measured and asserted, she would receive, after going 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 worker may receive between $33,000 to $45,000.
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 never are able to return to work following an injury. These clients may receive treatment for the injury for life and up to a maximum of $1,131 in 2024 for a worker making over $1,508 per week. 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 plan, if the worker is in a plan. How much? There is not a simple answer to these questions, but a worker can read about the potential sources of income at the NJ Division of Workers’ Compensation web site found at https://www.nj .gov/labor/workerscompensation/
Workers injured in 2024 may have some of their benefits paid by the NJ Second Injury Fund (“SIF”) The SIF may contribute to the total disability if the worker had pre-existing disabilities which contributed, with the work-related injury or disease, together made the worker totally and permanently disabled. Trying to get the SIF to contribute may be necessary but is always very slow. Too many years some es. The SIF is short of lawyers and staff to be able to address all of 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 WORKERS
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 her or his disability. This is not directly covered by NJ Workers’ Compensation Act but instead by the NJ Law Against Discrimination.
That law and regulations issued under that law, require the employer and the disabled workers to work on an interactive basis to get the disabled worker back to work.
A worker may not be denied employment opportunities because of a disability unless the nature and extent of the disability reasonably precludes job performance.
An employer must make reasonable accommodations to the limitations of injured workers unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. Injured workers can learn about the NJ LAD by looking at the website of the bttps://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/know-the-law/
WHAT IF A DISABLED WORKER IS FIRED FOR FILING A WC CASE OR BECAUSE OF THE WORK-RELATED DISABILITY?
First, the WC law prohibits an injured worker from being fired because he or she files for Workers’ Compensation. See N.J.S.A 34:15-39.1.
Second, if you are in a Union, the contract may provide explicitly or implicitly that no covered worker may be fired except of good cause. A disability includes work related reasons. As a practical matter, very few employers are dumb enough to fire an injured Union worker except for good cause.
Third, if it wasn’t clear, workers should try to return to work as soon as possible once they are able to perform the work, if necessary, with reasonable accommodation.
Fourth, if you are not covered by the Union Contract you are an employee-at-will. Therefore, employers sometimes fired disabled workers for no good reason. However, these cases are often not easy to prove.
Fifth, if you’re not covered by a Union Contract, you and your fellow workers should join a union. For example, twenty 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 and Aerospace Workers, AFL- CIO which represented the Elite Drivers. (Elite Limousine Plus and Limousine Drivers’ Union 324, N.L.R.R. 992 (1997), which you can find online. When thousands of other limousine drivers in NY and NJ learned of the Limousine Drivers Union and contract, they also joined the Machinists Union which until today represents many drivers. (Full Disclosure: our firm represents the New Jersey State Council of Machinists and believes that it is one of the strongest, most powerful Unions in America.)
