Workers’ Compensation—Different Types of Petitions

If you have been hurt at work in New Jersey, you will most likely be required to seek monetary recovery for any losses through the state’s workers’ compensation system. The process can be complex and confusing, though. This blog post identifies the different types of petitions that can be filed during the course of an application for workers’ compensation benefits.

An Informal Claim Petition

If you are involved in a dispute with your employer regarding compensation for a work-related injury, you can file a petition or application for an informal hearing. This hearing will be scheduled before a judge of compensation. The hearing with the compensation judge is designed to help you avoid litigation regarding your right to compensation, as litigation will typically be a more involved and time-consuming process. A wide range of issues can be addressed at an informal hearing, from the permanency of benefits to the amount of temporary benefits, as well as payment for any medical treatment.

Just because you file an informal claim petition does not mean that you cannot later file a formal petition. Any statements or offers you make during the course of the informal hearing will not be binding in subsequent proceedings. You can secure legal counsel to represent you in an informal hearing, but it is not required. If you do retain legal counsel, you will be responsible for paying your own legal fees.

A Formal Claim Petition

You can also file a formal claim petition with the New Jersey Workers’ Compensation Division. This must be done within two years of your injury. Your case will typically be assigned to a district office of the Workers’ Compensation Division in which you live, or where the employer is located. In most instances, your first hearing will be within six months of the filing of your petition.

When you file a formal claim petition, you can also file a motion for medical and/or temporary benefits. This will allow you to receive some compensation while your claim is being resolved.

Occupational Injury Petitions

Though most workers’ compensation claims are based on traumatic accidents, where you suffered an injury because of a specific event, you can also seek benefits for a work-related illness, known as an occupational disease. An occupational disease can include a repetitive stress injury, or it can stem from exposure to chemicals or other substances, leading to cancer, heart disease or other malady.

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Permanent Partial Disability vs. Temporary Total Disability

New Jersey Workers’ Compensation law provides, in some areas, clear and concrete guidelines for work-related injury awards. Loss of a middle finger below the first joint, for example, is compensated with an award equal to 25 weeks pay. On the other hand, determination of disability, permanent or temporary, partial or total, depends on subjective evaluations of the employee’s ability to perform work.

How a judge determines permanent partial disability

Permanent partial disability is defined in the Workers’ Compensation statutes as permanent impairment. Criteria considered in determining disability include a reduced ability to work in light of age, training, and experience. The injured employee will be examined by two doctors, one presumably favoring the employer, and one the employee. The case will then be heard by a Judge of Compensation, who will listen to the employee’s description of the effect the injury has had on his or her life. It is recommended that the employee be represented by a workers’ compensation attorney at that hearing.

In a 9-11 World Trade Center case, Judge Ferriaro determined that David Handshuh’s permanent orthopedic pulmonary, neurological, and neurosychiatric injuries equaled 60% of total disability. She did so after listening to testimony of numerous doctors. Her decision referred to “the usual disparity in the estimates of permanent disability offered by the doctors,” commented that she was not bound by those estimates, and stated that she found Handshuh’s doctors to be more persuasive and credible. (Handschuh v. New York Daily News)

A determination of temporary total disability

There is common confusion, even among medical professionals, between the terms impairment and disability. Medically, impairment (altered health status) does not necessarily result in a disability (inability to perform actions previously possible). Social Security and Workers’ Compensation guidelines have more specific, work-related definitions.

Under New Jersey Workers’ Compensation law, disability is in part defined by the person’s reduced wage-earning capacity. Temporary total disability benefits are wage compensation paid until an injured employee is able to return to work. It is calculated at 70% of the weekly wage received at the time of the injury, not to total more than 75% of the average or less than 20% of the average. Temporary disability exists until the worker is as far restored as possible (in other words, has reached maximum medical improvement), whether or not the worker is able to return to work. It can be paid up to 400 weeks. The patient’s doctor determines when the patient has reached that endpoint in recovery, or is able to return to work.

An injured worker who feels the doctor has erred in determining the patient’s ability to return to work or endpoint in recovery can file a claim with the New Jersey Department of Labor and Workforce Development. The claims process is challenging and the outcome can critically affect the worker’s quality of life. For that reason, the worker is advised to retain a workers’ compensation lawyer. The attorney will charge no fees until the matter is concluded, when the judge will determine the amount of the legal fees.

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Choosing a Doctor & Getting Medical Treatment

You have been hurt on the job, or are showing symptoms of an occupational illness. Your first responsibility was to notify your employer of the accident or injury. Next, you need to submit a request to your employer to get medical treatment. Under New Jersey Workers’ Compensation law, your employer or your employer’s insurance company can select the health-care provider to treat your work-related injury or condition. Some employers will agree to let you see your own doctor or chiropractor. Be sure to have that written permission with you before visiting your own clinic.

You will not have to pay any co-pay or deductible—the entire cost of treatment, including physical therapy, chiropractic treatments, doctor’s visits and other expenses, is covered. The doctor chosen by your employer will typically be under contract with your employer’s insurance company. Unfortunately, some of those providers take advantage of the relationship and do not provide the customer service, quality of diagnostics, and referrals to specialists you would find at your regular clinic.

If you are not happy with the workers’ comp doctor

Your employer does have the right to choose your doctor. However, if that means you are not receiving reasonable and necessary treatment that will cure you, relieve pain, or restore function, you have options. DO NOT go to your regular clinic and try to use your regular health insurance—treatment for a work-related injury is probably excluded from the policy.

You can file a claim in Workers’ Compensation Court, a Motion for Medical and/or Temporary Disability Benefits. Your motion will be scheduled to be heard by a judge within 30 days of filing. The judge can order the insurance company to pay for the treatment, diagnostic studies, or an evaluation by a specialist. If a doctor provides a statement that you need medical care before the hearing, and that a delay will result in irreparable harm, you can file a Motion for Emergent Medical Care.

Should you represent yourself in workers’ compensation court?

The claim process is complex and it is recommended that you retain a workers’ compensation attorney to represent you. Your lawyer will not charge a fee in a workers’ compensation case until the matter is ended, at which time the fee is determined by the judge. That fee will never be more than 20% of the award.

What is maximum medical benefit?

The workers’ compensation authorized doctor will eventually declare you have reached “maximum medical benefit” and should return to work. You may not have completely recovered from your injury and still experience pain and other symptoms, but if you have reached maximum medical improvement, you will not benefit from further medical treatment.

For more than a century, Workers’ Compensation Law has provided New Jersey workers with a no-fault insurance plan for on-the-job injuries and occupational diseases. The system may be challenging at times, but protects workers and forces employers to provide employees with care and compensation in the event of injuries.

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