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Total Disability

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

Injured workers who are totally disabled as a result of a work injury in New Jersey certainly do not live out the remainder of their lives in the lap of luxury. Their weekly benefits are capped at 70% of the average wages they were being paid at the time of the accident, with no cost of living increases. Unfortunately, many total disability claimants live in poverty, even though their benefits continue past the date of usual retirement, until death. So if you are able to return to work in any capacity after your injury, it may be preferable to accept a partial total award rather than fighting to be declared totally disabled.

Under What Circumstances Would An Injured Worker Be Awarded Total Permanent Disability?

If you are unable to return to work in any capacity you may be entitled to receive an award of total disability under the Workers’ Compensation Act. You must be deemed permanently unemployable in all industries – not just in your chosen profession. Please note that you are not automatically entitled to receive workers’ compensation total disability benefits just because you were declared disabled by the Social Security Administration.

What Does a Total Disability Award Entitle Me to Receive?

A Petitioner who is declared totally, permanently disabled will receive 70% of his average weekly wages, up to the state maximum rate (the same rate paid for temporary disability) from the date he was declared totally disabled to the date of his death. Total disability benefits do not end at retirement age. However, after 450 weeks of permanent total disability benefits have been paid, you will be required to attend a medical evaluation to confirm that you are still totally disabled.

How Do My Social Security Benefits Effect My Workers’ Compensation Total Disability Settlement?

You cannot receive more than 80% of your average cumulative earnings (“ACE”) between a combination of workers’ compensation and social security benefits. Before being declared totally disabled, the social security administration will take an offset for any benefits over the 80% ACE. After the date you are declared totally disabled the offset will reverse, meaning that the workers’ compensation carrier will receive the offset for any benefits in excess of the 80% ACE.

What Is the Second Injury Fund and Why Should I Apply for These Benefits?

The Second Injury Fund [“SIF”] was created in New Jersey to encourage employers to hire workers with disabilities. Due to the lifetime benefits which would be owed to a totally disabled employee, many employers became fearful of hiring individuals with pre-existing injuries. The SIF was thus established to allay the fears of employers by promising to pay a portion of total disability benefits for employees who became disabled due to a combination of the last accident and pre-existing injuries.

Your attorney may recommend applying for SIF benefits if one or more of the medical experts believe that you are totally, permanently disabled due to a combination of medical conditions. Procedurally, the first step to obtaining these benefits is to file a Second Injury Fund Verified Petition. The workers’ compensation carrier will be more amenable to a total disability award if the SIF is paying a portion of the lifetime benefits.

Under What Circumstances Is My Spouse Eligible To Receive Continued Benefits After My Death?

Total disability benefits end with the death of the Petitioner. However, if the Petitioner’s death is directly related to the work-related injury, then the Petitioner’s dependents are entitled to receive “dependency” benefits of up to 70% of his average wages. The spouse and minor children are automatically considered dependents of the injured worker. Of course, the insurance carrier may contend that the death is related to causes other than the work injury, and deny further benefits to the Petitioner’s family. If so, a Dependency Claim Petition must be filed in order to force the carrier to pay continued benefits.

Lisa J. Pezzano

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