NJ PARALEGAL CONVENTION

Transcription

1 Workers Compensation David Lande, Esq. NJ PARALEGAL CONVENTION NJ Paralegal Convention October 24, 2014

2 WORKERS COMPENSATION IN GENERAL SOURCES OF INFORMATION: PRIMARY SOURCES: Title 34, Chapter 15, Articles 1 to 10 N.J.S.A. 34:15-1 et seq. (The Workers Compensation Act) N.J.A.C. 12: et seq. (The Rules of the Division of Workers Compensation) State of New Jersey, Department of Labor and Workforce Development, Division of Workers Compensation website - (contains DWC Organization & Function, information on Second Injury & Uninsured Employer's Funds, Frequently Asked Questions, how to on Filing a Claim, Forms & Publications, WC Statute, WC Rules, Carrier Contacts, and OSCAR-Calcs Program) Courts On-Line and Electronic Filing must register with the Division of Workers Compensation. To register go to Link to Courts On-Line - online.dol.state.nj.us%3a443%2f SECONDARY SOURCES: Practical Skills Series: Workers' Compensation (through NJICLE) by John D. Kovac, Esquire Workers Compensation Law (New Jersey Practice series) by Jon L. Gelman, Esquire Geaney s New Jersey Workers Compensation Manual for Practitioners, Adjusters and Employers

3 WORKERS COMPENSATION WHAT IS IT System of compensation that provides benefits for personal injuries or death to workers. Includes workers who contract occupations diseases while working. N.J.S.A. 34:15-7. WHO IS COVERED Virtually every worker is covered unless opted out or not covered by law. N.J.S.A. 34:15-36 defines an employee as: synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration, exclusive of (1) employees eligible under the federal Longshore and Harbor Workers Compensation Act, 44 Stat (33 U.S.C.s.901 et seq.), for benefits payable with respect to accidental death or injury, or occupational disease or infection; and (2) casual employments, which shall be defined, if in connection with the employer s business, as employment the occasion for which arises by chance or is purely accidental, or if not in connection with any business of the employer, as employment not regular, periodic or recurring; provided, however, that forest fire wardens and forest firefighters employed by the State of New Jersey shall, in no event, be deemed casual employees. WHO IS NOT COVERED Examples of workers not covered: independent contractors; federal workers such as postal employees, railroad workers, seamen and harbor workers; casual employees; certain volunteers such as on township committees; sole proprietors or partners who opt out of coverage.

4 WORKERS COMPENSATION WHAT IS COVERED Injuries or death by accident or occupational exposure arising out of and in the course of employment. N.J.S.A. 34:15-7. No-fault system. Without regard to the negligence of the employer or the employee or co-employees. Some exceptions to coverage: When the injury or death is intentionally self-inflicted. Injury or death is caused solely by intoxication or the unlawful use of controlled dangerous substances. Injury or death is caused by an employee s willful failure to make use of a protective device. Injury or death is caused when engaged in recreational or social activities, unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale. Going and Coming Rule - Employment commences when an employee arrives at the employer s place of employment and terminates when the employee leaves the employer s place of employment, excluding areas not under the control of the employer. Some Exceptions to Going and Coming: Employee required by employer to be away from the employer s place of employment if the employee is engaged in the direct performance of duties assigned or directed by the employer; employee paid travel time; travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency. Minor deviations from work: stopping to smoke, using a telephone, using a bathroom.

5 WORKERS COMPENSATION BENEFITS 1. MEDICAL CARE/TREATMENT NO CO-PAYMENT OR DEDUCTIBLE EMPLOYER CONTROLS TREATMENT/MUST AUTHORIZE NO AUTHORIZATION REQUIRED IN AN EMERGENCY REFUSALS If employer refuses or neglects to provide medical treatment, the employee may secure such treatment and services as may be necessary, and the employer shall be liable to pay therefore. Employee must first request medical treatment. MOTION FOR MED AND TEMP. V. SEEKING TREATMENT ON OWN 2. TEMPORARY DISABILITY BENEFITS 70% of GWW subject to maximum for year of injury/death 3. PERMANENT DISABILITY IMPAIRMENT/ NO PAIN & SUFFERING PARTIAL TOTAL TOTAL DEATH BENEFITS PRE-EXISTING/CREDIT

6 NOTICE 1. SPECIFIC EVENT TIME/PLACE 90 DAYS FROM D/A ORAL OR IN WRITING TRAUMATIC HERNIA 48 HRS WEEKENDS/HOLIDAYS NOT INCLUDED 2. OCCUPATIONAL DISEASES Compensable occupational disease shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. This includes orthopedic type injuries, hearing loss, etc. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable. NOTICE NOT REQUIRED REPEALED 2003 RECOMMENDED REQUEST MEDICAL

7 STATUTE OF LIMITATIONS 1. SPECIFIC EVENT 2 YEARS DATE OF LAST PAYMENT OF COMPENSATION - LAST PAYMENT INCLUDES TREATMENT; - USE DOS 2. OCCUPATIONAL DISEASES - 2 YEARS FROM DATE THAT claimant knew the nature of the disability and its relation to the employment FILING OF CLAIM PETITION WITH COURT NOTICE IS NOT SAME THING

8 SETTLEMENTS SECTION 20 VS. SECTION 22 All settlements must be approved by a judge of compensation who will determine if the settlement is fair and just. No out-of-court settlements. Section 22 (Order approving settlement): - settlement for a percentage of disability as per the schedule of disabilities - may be reopened within two years from the date last received a payment or benefit To reopen - must show incapacity/impairment has subsequently and materially increased since prior award. N.J.S.A. 34:15-22 and N.J.S.A. 34:15-27 Section 20: 1. Petitioner must be represented by counsel. 2. The case involves contested issues of jurisdiction, liability, causal relationship and/or dependency; and 3. The settlement is determined to be fair and just under the circumstances. Acts as a dismissal of the petitioner's claim and a complete surrender of any future right to compensation or benefits arising out of the injuries, conditions or exposures encompassed in the claim petition. No waiver of future dependency claims in the event that the petitioner's death occurs as a result of the injuries, conditions or exposures encompassed by petitioner's claim petition unless dependents join in a waiver of future dependency benefits. N.J.S.A. 34:15-20 and N.J.A.C. 12:

9 SPECIAL COMPENSATION FUNDS SECOND INJURY FUND: Purpose: Created to make payments to totally and permanently disabled workers where the cause of total disability was subsequent to a prior partial disability. Designed to encourage employers to hire disabled workers by limiting their liability for compensation payments. Example of worker injures back and returns to work. Then injures neck and can no longer work due to the combination of the back and neck injury. Limitations: 1. Total disability due to last accident alone regardless of prior injuries/disability. 2. Disease or condition existing prior to the last compensable accident is progressive and by reason of such progression subsequent to the last compensable accident renders the person totally disabled. 3. Person who is rendered partially disabled by the last compensable injury subsequently becomes totally disabled by reason of progressive physical deterioration or preexisting condition or disease. Benefits: The Second Injury Fund only covers total disability payments. No medical treatment, attorneys fees, or dependency benefits if worker dies while receiving payments. UNINSURED EMPLOYERS FUND (UEF): Established to provide for the payment of medical and temporary benefits entered against uninsured defaulting employers. Only pays medical and temporary benefits. An injured worker or his/her attorney must notify UEF within 30 days after the worker or his/her attorney knew or should have known that the employer was uninsured, or receives confirmation of non-insurance from the Compensation Rating and Inspection Bureau that benefits may be sought.

10 ABOUT THE PRESENTER David H. Lande, Esquire is a partner with the law firm of Gill & Chamas with offices in Woodbridge and Howell, New Jersey. He heads the firm s Workers Compensation Department. A trial attorney for the past 23 years, he has practiced in personal injury and workers compensation exclusively for the last 20 of those 23 years. Prior to that, he was a Judge Advocate in the United State Army serving with the 82d Airborne Division and having deployed to the Sinai Peninsula as part of a multi-national peacekeeping force. Mr. Lande has a statewide workers compensation practice and routinely appears in the various District Offices of the Worker s Compensation Courts. Over the last 20 years, he has tried cases in various municipal, state, federal, and administrative courts of the states of New Jersey, New York, Pennsylvania, Massachusetts, and the United States Army. Born and raised in Bergen County New Jersey, he received a bachelor s degree from Glassboro State College in Glassboro, New Jersey, and his law degree from Widener University School of Law in Wilmington, Delaware.