Generally speaking, in New Jersey, an employee cannot bring a claim in the Superior Court of New Jersey for pain, suffering, and loss of quality of life against his or her employer or co-worker for injuries sustained during the course of his or her employment. The one exception, which arises in very rare circumstances, is if it can be proven that the employer intentionally injured or willfully exposed an employee to a known danger.
While an employee cannot make a direct claim for pain, suffering, and loss of quality of life against his or her employer, an employee can make a worker’s compensation claim. Even though a direct claim for pain, suffering, and loss of quality of life cannot be made, those elements are relevant to the extent they prevent the worker from doing his or her job.
When making a workers’ compensation claim, an employee does not have to prove that the employer was negligent, only that the injury arose out of and in the course of the employee’s employment.
Injuries can be physical or psychological.
Workers’ Compensation Benefits in New Jersey
Once it is established that an employee was injured during the course of his or her employment, the employee is entitled to 3 benefits:
1. Medical Treatment
An injured worker is to receive medical treatment with no out of pocket expenses to him or her. However, the workers’ compensation insurance company or third-party administrator handling the claim on behalf of the employer is permitted to choose the doctors that the injured worker is permitted to treat with. The insurance company or third-party administrator also must approve all treatment that is recommended by the treating doctor. If the injured worker goes and treats without the authorization of the insurance company or third-party administrator, he or she may be responsible for the cost of the treatment.
Unfortunately, this is where a lot of issues arise in workers’ compensation cases. Very often the treating doctor will recommend treatment, but it will not be approved, or the treating doctor will prematurely stop the injured workers treatment. In these situations, a motion must be filed with the Court and the Judge must get involved.
2. Temporary Disability Benefits
An injured worker becomes eligible for temporary disability benefits after a seven-day waiting period. On the eighth consecutive day of an absence, the worker becomes eligible for benefits retroactive to the first date of absence. A worker is entitled to 70% of their gross average weekly wages; however, each year there is a weekly cap on benefits. For work accidents occurring in 2018, the maximum weekly temporary disability benefits is $903.00. You should also be aware that you may be entitled to additional disability benefits through any private disability plan you have.
An injured worker is entitled to temporary disability benefits, after the seven-day waiting period, for the period of time that the authorized treating doctor keeps the worker out of work, or until the injured worker reached maximum medical benefit, which means that no additional treatment will improve the worker’s condition.
If the treating doctor indicates that the worker can go back to work with restrictions and the employer can accommodate those restrictions, the employee’s temporary disability benefits will end, and the worker will have to go back to the position offered by the employer. However, if the employer cannot provide a position that accommodates the restrictions the employee will continue to be eligible for temporary disability benefits and will not be required to return to work.
3. Permanency Award
An injured employee may be entitled to a permanency award, after they are done treating, if they have a partial or total disability despite the treatment they receive. A permanency award is a monetary award that is based upon the percentage of residual disability an injured worker has as a result of his or her work injury.
Types of Workers’ Compensation Claims
- Traumatic Injury: a specific event causes an injury.
- Occupational Injury
- Exposure: Workers are exposed to asbestos, fumes, loud noises, or other toxins that cause an injury.
- Repetitive Use: Repetitive movement during the course of employment causes injury.
If the injury, occupational injury or disease results in the death of the employee, his or her dependent(s) may bring an action for dependency benefits.
Right to Reopen Your Case
Even after your workers’ compensation claim is resolved for a permanency award and/or your treatment is completed, the injured worker has two years from the receipt of his or her last workers’ compensation benefits (receipt of last permanency award check, receipt of last temporary disability benefit, or receipt of medical treatment) to reopen his or her workers’ compensation claim if his or her condition substantially worsens.
Again, it is important to note that the injured worker cannot just go back to the doctor, he or she must request additional benefits through the insurance company or third-party administrator or his or her attorney.
An employee can even re-open a case if they switch employers.
Once the two-year period elapses the right to reopen a case is forever lost; however, if a new injury or incident occurs the injured employee can make a new workers’ compensation claim. The prior settlement does not bar bringing a new claim.
Potential Third-Party Case
If a person or company other than your employer was responsible for your injuries, then you will have both a workers’ compensation claim and what is called a third-party claim for pain, suffering, and loss of quality of life, against the other person or company that was responsible for your injuries. However, you must prove that the other person or company was negligent, i.e. failed to act reasonably, and their failure to do so resulted in your injuries.
How Much Will a Workers’ Compensation Lawyer Charge?
Like most states, in New Jersey workers’ compensation lawyers work on a contingency fee basis. This means that the lawyer attorneys’ fee for the work they do on your case comes out of any settlement that you receive from your employer. If there is no settlement, there is no cost to you for the services of your attorney.
In a New Jersey workers’ compensation case, the maximum attorneys’ fee is 20%; however, the attorneys’ fee is typically split between the injured worker and the insurance company, with the injured worker paying 40% of the fee and the employer paying 60% of the fee.
In addition to the contingency fees, the injured worker is required to pay for a portion of the cost of obtaining an expert report. In certain circumstances an injured worker would also be responsible for the cost of obtaining medical records, and expert witness testimony, among other fees. You should discuss the potential fees and costs with your lawyer at your initial consultation.
Get the Compensation You Deserve
While a workers’ compensation case may seem simple, they become quite complex, and unfortunately insurance companies for the employers are not always willing to provide the benefits the injured workers are entitled to without the insistence of an attorney or the workers’ compensation Judge.
If you have been injured on the job, the experienced attorneys at Cerussi & Gunn, P.C. can help you navigate through the workers’ compensation system and get you all benefits you are entitled.