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Temporary Disability

  • By: Lisa J. Pezzano
  • Published: September 18, 2019

The New Jersey Workers’ Compensation Act provides that temporary disability benefits equaling 70% of the employee’s gross average weekly wages (up to the state maximum rate) shall be paid if the employee is unable to work as a result of a work accident, until he has reached maximum medical improvement from treatment.

How Long After a Workers’ Compensation Claim Is Filed Will an Employee Begin Receiving Wage Replacement for Time Out of Work?

Temporary disability benefits are payable when the employee is out of work for seven consecutive days, although it often takes longer for the insurance carrier to actually administer the benefits. In other words, if you are sent back to work by your doctor in less than a week, you are not entitled to receive workers’ compensation lost wage benefits. Once seven days has passed though, benefits are payable starting on the first day you were unable to work.

How Can I Prove That I Am Unable to Return to Work?

After an accident or injury occurs at work, it is not enough to just advise your employer that you do not feel well, and need to take off a few days to recover from work, in order to collect temporary disability benefits. Of course, if your company has a sick leave policy, you may be entitled to receive sick pay, even without a doctor’s note. However, you may not collect workers’ compensation temporary disability unless you receive an “out of work” note from a doctor, who confirms that your inability to work is related to the work accident. You should transmit the medical note to your employer, but be sure to keep a copy of it.

How is the Temporary Disability Rate Calculated?

In order to figure out if the workers’ compensation carrier is paying you at the correct temporary disability rate you must first calculate your “average weekly wage,” including overtime. Take a look at your paystub. Do you make the same amount every week or does your salary vary? If you earn an annual salary, your weekly wage should be the same every week. Your temporary disability rate is thus easy to compute at 70% of your gross weekly wage before tax.

If your wages vary every week, your rate is based upon your average earnings, which is generally, although not always computed over the six (6) month period immediately prior to the date of the accident. It is recommended that you gather all of your paystubs for the last twenty-six (26) weeks prior to the accident, in order to compute your average pre-tax wage. Do not count the week of the accident if you only worked a partial week due to your injuries. Likewise, if you took an unpaid leave during that six (6) month period, do not include those weeks when calculating your average wage. It is common for insurance carriers to mistakenly include these unpaid weeks, which thereby lowers your rate unfairly. However, you cannot exclude those weeks in which you simply worked less hours, just as the carrier cannot exclude those weeks when you worked more overtime than usual.

What is the Significance of the New Jersey Maximum and Minimum Temporary Disability Rates?

If you are a high wage earner, your temporary disability benefits are capped at the State maximum rate. In 2018, the maximum rate in New Jersey is $903/week. Some employers may voluntarily offer to pay the difference between the workers’ compensation rate and your salary. However, they are not required to do so. Speak with your human resources department to inquire about whether your company offers such a benefit.

If you earn only the minimum wage and/or work part-time, you may be entitled to receive more than your average weekly wage if you are hurt on the job and unable to work. New Jersey law establishes a minimum weekly rate, which may exceed your part-time wages. In 2018, the minimum rate in New Jersey is $241/week.

What Happens If the Doctor Puts Me Back to Work on a Light Duty Basis?

The workers’ compensation carrier may encourage the physician to release you back to work, at least on a light duty basis. While you are still receiving medical treatment, you should provide the doctor with a copy of your job description. You should explain exactly what job duties you feel that you cannot perform due to your injury. If the doctor releases you to return to work on a light duty basis, ask him to write down your limitations with as much specificity as possible, such as: no bending, no overhead work, no use of machinery, no lifting over a certain weight, or mandatory breaks every 30 minutes.

If you are placed on light duty, then you should bring a copy of the “return to work” note with restrictions to your supervisor or human resources department. If your employer does not offer light duty work, ask your supervisor to provide you with a written note to that effect. If no light duty work is available, then your temporary disability benefits should continue until you are released to return to work full duty or you have been discharged from medical treatment.

What Steps Should I Take If My Supervisor Directs Me to Perform Tasks in Excess of the Light Duty Restrictions Listed by the Workers’ Compensation Doctor?

If your employer does have a light duty work program, then you must attempt to return to work, since your temporary disability benefits will be terminated. Given the difficult job market, it is advisable to make yourself useful to the company when you return. However, do not be afraid to refuse to perform a task which clearly requires you to perform work in excess of the light duty restrictions set forth by your physician. Keep a copy of your light duty note with you at work, and politely remind your supervisor that you need to follow your doctor’s orders to avoid reinjuring yourself.

At the next doctor’s visit following your return to work, you should discuss the activities which you have been requested to perform at work, and explain the symptoms you are experiencing as a result. Ask the physician to make a note if you are being forced to work beyond your light duty restrictions. The doctor will hopefully either reiterate that the light duty restrictions must be enforced, or give you a new “out of work” note.

If your supervisor continually requests that you perform tasks in excess of your physical capabilities, then you should keep a log of those activities to refresh your memory in the event it is necessary to explain these examples to the Court in the future. Your attorney should send a letter to the carrier explaining that the light duty restrictions are not being respected by your employer, and requesting the resumption of temporary disability benefits until light duty work is provided. If it is too difficult for the company to provide continued light duty work, your employer should so advise the insurance carrier. If you anticipate being able to work full duty in the future, it may also be helpful for your attorney to forward a letter to the employer, or the employer’s attorney, reminding the company that it must merely advise the insurance carrier if it has become too difficult from a business perspective to provide you with continued light duty work, thereby triggering the recommencement of temporary disability benefits. However, if it appears that you may be permanently be restricted to working light duty, and you want to keep your job, it may not be the best long-term strategy for you to discourage your employer from offering work which is truly light duty in nature.

I Returned to College After My Injury. Am I Still Entitled to Receive Temporary Disability Benefits?

Generally, if you return to school on a full-time basis then you are not entitled to receive continued temporary disability benefits, on the basis that you have removed yourself from the workforce. However, if you are able to prove that you worked at the same time that you attended college prior to the injury, an argument may be made that you are entitled to receive temporary disability benefits. Unfortunately, the law is unclear on this issue and you should consult with a workers’ compensation attorney about your particular circumstances.

What Should I Do if the Workers’ Compensation Doctor Prematurely Sends Me Back to Work Full Duty?

If you are released to return to work full duty then you should at least attempt to return to work, even if you do not feel able to do so. If you try to work and cannot perform your job duties, advise your employer if you experience additional pain while working. If you are “written up,” for failing to perform certain physical activities due to your injuries you should obtain a copy of that report, and immediately forward a copy of it to your attorney.

If you have not exhausted all medical options available to enable you to work at your pre-injury level, then you should request to return to the workers’ compensation physician. Explain to the doctor what occurred when you performed a particular activity at work, and why you feel that you need more time off to recuperate. If the doctor recommends additional treatment to help you improve function and directs you to postpone returning to work, then you are entitled to receive continued temporary disability benefits.

If the insurance carrier ignores your request, then you may seek a second opinion through your health insurance, to determine whether you need additional treatment. Remember, you are only entitled to receive temporary disability if you are unable to work and are receiving active medical treatment. Your attorney may utilize the office note of your second opinion doctor to file a “Motion for Medical and Temporary Disability Benefits.” The downside to using a treating medical doctor is that it is difficult and expensive to persuade a doctor with an active medical practice to testify in Court on your behalf. However, at least obtaining such a report can get your attorney in front of a Judge of Compensation, to discuss your injuries. If you do not have health insurance, then your attorney may send you to an independent medical examiner who may also provide such a report, although that doctor would not render medical treatment. Such experts may charge up to $600 for the examination and a report. The benefit of using an independent medical examiner is that he usually has more experienced testifying in Court, and it is practically easier and less expensive to get such an expert into the courthouse, as opposed to a doctor who treats patients on a daily basis.

Are There Any Lost Wage Benefits Available After Workers’ Compensation Stops Payment of Temporary Disability Benefits?

Yes, there is an alternate source for you to obtain some financial relief if your workers’ compensation temporary disability benefits are terminated and you are medically unable to return to work. Your employer may have purchased a disability plan through a private insurance company, or you may be qualified to receive benefits through the State if New Jersey. You should ask your company’s human resources department whether the company’s disability insurance is through a “state plan” or a “private plan.” If your company purchased a private plan, you must apply for benefits through that insurance company.

If your employer is covered by a state plan, you may qualify for state temporary disability insurance benefits [hereinafter referred to as “TDI”], if you have earned the threshold amount of wages in New Jersey covered employment during the 52 weeks immediately prior to the date your disability began. You must have earned at least $168 per week in the last 20 weeks, OR earned at least $8,400 during the year in which the disability occurred to qualify for benefits.

You may apply for TDI benefits while you are waiting for the Division of Workers’ Compensation to hear the Motion for Temporary Disability Benefits which your attorney filed on your behalf. Please note that filing a Motion for Temporary Disability Benefits is not a prerequisite for obtaining TDI benefits. However, it is advisable to file a Motion in order to increase the chances of forcing the workers’ compensation carrier to pay the lien which will ultimately be placed on your workers’ compensation case by the State of New Jersey, for the benefits it paid to you.

The quickest way to obtain TDI benefits is to file an online application. If you do not have internet access, you may mail your completed Application to the Division of Temporary Disability Insurance / P.O. Box 387 / Trenton, NJ 08625-0387 /Fax: 609-984-4138.

The current Application for State TDI benefits contains three parts. You must complete Part A of the Application. Your physician must complete the Certification found in Part B. You should ask your employer to complete Part C of the Application, which lists your wages in the ten (10) week period immediately prior to your disability. If your employer refuses to complete their portion of the Application you may write “Employer Uncooperative” on Part C, and instead attach a copy of your paystubs over the last ten (10) weeks.

The New Jersey Division of Temporary Disability Insurance provides lost wage benefits for qualified individuals who are unable to work due to non-occupational causes. Accordingly, if your disability is related to a work injury your application for TDI benefits will initially be denied. Do not be alarmed. Upon receipt of a denial, you must simply complete a “Certification of Contested Workers’ Compensation Claim” form. In order to qualify for TDI benefits, your attorney must first file a Claim Petition in the Division of Workers’ Compensation, and provide you with the Claim Petition number which must be noted in the Certification form. The State will then assert a lien for any benefits it paid on your behalf, to be paid out of the proceeds of any award you obtain in the Division of Workers’ Compensation.

State TDI pays qualified applicants two-thirds (2/3) of their average wage, up to a maximum benefit rate which changes annually. The maximum weekly benefit rate is $633 for disabilities which begin on or after January 1, 2017. There is a seven (7) day waiting period before you are eligible to receive benefits, and TDI benefits are available for up to six months, as long as a physician continues to certify that you are unable to work.

I Worked at Two Different Jobs at the Time of My Work Accident. How Do I Obtain Compensation for Lost Wages at My Second Job?

With stagnant wages these days, many people find it necessary to work at a second job in order to make ends meet. But what happens if you get hurt at one job, and can’t work at the other because of your injury? Workers’ compensation will only pay wage replacement benefits for the job in which you were injured. You may apply for benefits from the State of New Jersey if you are disabled from working at the second job. However, there are many exceptions and pitfalls to be aware of when collecting both workers’ compensation and State temporary disability benefits [hereinafter referred to as “TDI”].

When applying for TDI benefits for part-time employment, you must take special care in completing Part A of the Application. You must indicate on the form whether or not the injury was caused by your employment. This question continues to cause much confusion for applicants with multiple jobs, in which only one job caused the injury. Some attorneys advise their clients to check off “no” to this answer, if the injury was not caused by the specific job for which you are claiming benefits, but to add a note clarifying that the injury is related to your job with a completely different employer. The reason for going through this seemingly unnecessary step is to avoid the bureaucratic red tape which will be unleashed if the injury is listed as work related, to avoid the State from paying you duplicate benefits. If your injury is reported as work-related, then you must list all of your employments at the time the disability arose, so that all of your wages are taken into account to compute your TDI rate. Your rate will then be reduced by the amount you receive for workers’ compensation. Unfortunately, the State continues to mistakenly place TDI liens on the unrelated workers’ compensation case. Your attorney must then try to persuade the State to lift the lien, resulting in unnecessary delays at the time of settlement.

What Is the Maximum Amount of Time That I May Collect Temporary Disability Benefits Through Workers’ Compensation?

Temporary disability benefits are, by their very nature, “temporary.” The maximum period of time that you may collect temporary disability benefits is 450 weeks (approximately 8.5 years). However, you must be under active medical treatment during this time period in order to qualify for continued lost wage benefits. In order to be considered “active,” the medical treatment must help you progress towards an increase in function, not just alleviate your symptoms temporarily. For instance, injections, physical therapy, or surgical intervention are all modalities which constitute active medical treatment. Going back to your doctor once every three months for prescription medication is generally not sufficient to constitute active medical treatment, to qualify you for continued temporary disability benefits. Accordingly, you should use the time you are out of work wisely by considering other occupations and job opportunities in order to prepare yourself to return to the workforce.

My Employer Offered to Accept Me Back to Work on a Light Duty Basis, But Is Only Providing Me with a Few Hours of Work.

It is common for the workers’ compensation carrier to pressure employers into providing a light duty return to work program, even when employers practically do not have such work to offer. If your employer is only able to find a few hours of light duty work for you to perform then you are entitled to receive continued temporary disability benefits which are reduced by the partial salary you are paid by your employer. Unfortunately, many workers’ compensation carriers will immediately suspend benefits as soon as the employee returns to work, even if it is only for a few hours. You should provide your attorney with a copy of your paystub, proving that you are not being paid your pre-accident wages for the light duty work. The insurance carrier is obligated to pay you the difference between your part time wages and your workers’ compensation rate. If your part-time salary exceeds your temporary disability rate then you are not entitled to any additional benefits from workers’ compensation.

What If the Workers’ Compensation Doctor Indicates That I Can Never Return to Full Duty Work?

Temporary disability benefits will be terminated once you have reached “maximum medical improvement” from treatment, even if you cannot return to work full duty or even to the same line of work. The New Jersey Law Against Discrimination and the federal American with Disabilities Act require employers to offer “reasonable accommodations” for your disability. A reasonable accommodation may include providing you with help lifting heavy items, allowing you to stand and stretch periodically, or installing an ergonomic keyboard. Keep in mind though, that an employer cannot be forced to keep you on the payroll if you are unable to perform the essential functions of your job.

If you believe that your employer may make simple accommodations for you which would allow you to do your job, without disrupting the business, you should ask your doctor to provide you with a note indicating that such an accommodation is necessary. If your employer refuses to make these adjustments which will permit you to keep working, without disrupting the business, then you should consult with an attorney who specializes in employment law. The Division of Workers’ Compensation does not have jurisdiction to decide these issues.

Will The Workers’ Compensation Carrier Pay For Me To Obtain Retraining In Another Occupation If I Cannot Return To The Same Type Of Job?

The New Jersey Workers’ Compensation Act does not require your employer or the insurance carrier to provide you with retraining. If you are not ready or financially able to retire, you should make plans to start a new career. The New Jersey Division of Vocational Rehabilitation Services (“DVRS”) does provide some limited assistance. DVRS provides counseling, training, assistance with job searching and placement. You may contact your local DVRS office to schedule an appointment for an initial interview, at which time your eligibility for services will be evaluated.

Lisa J. Pezzano

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