Permanency… What is it in the context of a New Jersey Workers Compensation Case?

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.

Today I’m going to discuss one of the three statutory entitlements provided employees in New Jersey’s Worker’s Compensation statute.  When people ask me what is the benefit of filing a Worker’s Compensation claim I explain to them in a very simple way. New Jersey’s Worker’s Compensation statute entitles employees who are injured on the job or in the course of their employment with three benefits similar to the three legs of a stool. Remember any stool cannot stand on its own without all three legs.  Workers compensation benefits in New Jersey are the same.

The first benefit is wage replacement, pursuant to the statute, and it entitles a injured employee whom a doctor has declared unable to work due to a work related injury, 70% of his wages up to a statutory maximum tax free during the entire period of medically declared disability.  If a doctor releases a patient to light duty and the employer does not have a light duty accommodation the employee shall be considered disabled and entitled to continue to receive the wage replacement benefit.

The second immediate, benefit employees are entitled to, again if they suffer a work related injury on the job, is medical treatment.  This treatment is directed and managed by the Worker’s Compensation insurance company through third-party administrators, nurse case managers, and adjusters.  So long as the authorized physician prescribes initial as well as additional treatment, therapy, testing, MRIs, or surgery (except for emergency room treatment) the Worker’s Compensation carrier has to continue to provide said treatment because their chosen physician has made the recommendation.  If the treatment is not authorized the petitioner is entitled to file a motion for medical and temporary disability benefits to seek a court order to obtain the statutory entitled medical treatment recommended by the authorized treating doctor as well as any TDB from the time they are unable to work.

The third leg of the New Jersey Worker’s Compensation statute employee benefits is a permanency award. The statute authorizes the Worker’s Compensation judge to make a determination of permanency after trial or after negotiations between attorneys for both sides based upon the employee’s injuries, the employee’s  chosen permanency doctor’s opinions relative to the employer’s permanency doctor’s opinions of permanent condition.

The following will be a discussion of the preeminent New Jersey Supreme Court decision outlining what an employee must prove by Competent credible  objective evidence regarding a permanent restriction of the function of a body or a member of organs.

The most important of the case addressing permanency is Perez v. Pantasote, 95 N.J. 105 (1984). This case addressed the key statutory definition in N.J.S.A. 34:15-36, which provides:

‘Disability permanent in quality and partial in character’ means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs;

This case, similar to third party tort cases, requires the petitioner to prove his case by a preponderance of the evidence by objective credible medical evidence.  Subjective complaints alone are not sufficient to meet the standard for an award of partial permanent disability. As a result there is a substantial emphasis placed upon objective tests such as MRIs, x-rays, EMGs, CT scans, pulmonary function testing and other similar studies.

Two additional cases with petitioners names Perez addressed the remaining aspects of the test outlined in N.J.S.A. 34:15-36.  The first was Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).  This case focused on the following language in the statute:

Included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. This case mandated the trial court determine either a substantial impairment of non-work activities or a lessening to a material degree of working ability.  It is an either/or test.  In this case the employee complained of loss of grip strength, pain in the wrist while playing with his children, diminished ability to play volleyball and not being able to do as much weightlifting as in the past.   The Court held that these complaints were sufficient to meet the test of having an impairment of the ordinary pursuits of life.  Petitioner did not need to prove work impairment to get his award.

Perez v. Monmouth Cable Vision is very important for two reasons:  one, it shows that an employee with objective evidence of permanent partial disability who gets back to work doing the same job can still receive an award of permanency so long as the employee proves by way of credible objective evidence (testimony or memorialized complaints in medical records from the authorized treating doctor’s records) a substantial impairment of the ordinary pursuits in life.  Two, it shows that the threshold required by the employee for testimony about impairment of the ordinary pursuits of life is not particularly high.

In the third Perez decision, Perez v. Capitol Ornamental, 288 N.J. Super. 359 (App. Div. 1996), the New Jersey Supreme Court addressed a herniated disc case.  The petitioner in this case suffered a herniated disc.  He worked as a farm laborer in Puerto Rico before doing landscaping and construction in the U.S.  After he had his laminectomy surgery, he continued to have back problems and applied to the Division of Vocational Rehabilitation for job training.  He was out of work for years and could not find work.  Respondent’s evaluating physician estimated 12.5% permanent partial disability but stated at trial that he did not consider petitioner’s employment problems when he provided his estimate.

The Judge of Compensation awarded 32% permanent partial disability, which was much less than what the petitioner thought he was entitled to.  The Judge wrote, “ . . . the award which I presented in my opinion was determined on a basis and with the purpose of being consistent with similar injuries previously presented to me for disability determination.”  The Appellate Division took this comment to mean that the Judge of Compensation had not really considered the difference between a person with a spine surgery who gets back to work and a person with spine surgery who cannot return to work.  The New Jersey Supreme Court reversed the decision and rejected the trial and appellate court’s decision because neither decision had taken into account the severe impact on this individual petitioner’s working ability.

Perez v. Capitol Ornamental makes an important contribution to the workers’ compensation formula for permanent partial disability by establishing a principle that cases should be valued higher where the injury causes a career change or career loss as compared to cases where no such career loss occurs.

If you were injured at work and have questions about your statutory entitled rights please call Hark & Hark at your first chance. We handle these cases in every county in New Jersey and especially Camden, Gloucester, Mercer, Monmouth, Ocean, tlantic, Cumberland, Cape May, Salem, Union, Essex, and Middlesex Counties.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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