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Issues Outside Of Workers’ Compensation Which Affect Injured Workers

There are several areas of the law which may touch the lives of injured workers, but are not covered by the New Jersey Workers’ Compensation Act. The Division of Workers’ Compensation does not have any jurisdiction to decide issues which arise under these areas of the law, although decisions you make surrounding these issues may affect your workers’ compensation benefits.

Am I Eligible To Receive Social Security Retirement Benefits?

Depending on your age, you may already be eligible to receive your full social security retirement benefit. The full retirement age is has been gradually raised – it is currently either 66 or 67, depending upon the year you were born. You may start receiving social security retirement benefits as early as age 62, although you will receive a reduced amount.

What Do I Need To Know About Social Security Disability If I Am Hurt At Work?

As a rule of thumb, if it appears that you will be out of work for at least a year due to your injuries, you should apply for Social Security Disability Insurance Benefits (“SSD”). You must have earned enough work credits, and paid social security taxes, over the past 10 years to qualify.

You cannot collect more than 80% of your pre-accident income, so applying for SSD while you are receiving workers’ compensation benefits will not result in a windfall. However, if you are seriously injured, it is important to get the SSD benefits in place, so that you are receiving some income if the workers’ compensation benefits are abruptly stopped. Remember, temporary disability benefits are supposed to be temporary in nature, so they will end once your treatment ends, even if you are not medically able to return to the same line of work. If you are awarded SSD and then recover from your injuries in the future, you may try to return to work for a trial period without the risk of losing SSD in the event that your injuries prevent you from continuing to work on a long-term basis.

Can I Apply for a Private Pension If I Am Receiving Workers’ Compensation Benefits?

Yes, you may take advantage of any pension offered by your employer, but keep in mind that your pension benefits may cause unintended consequences to your workers’ compensation benefits. It is generally not a good idea to apply for a pension if you are still receiving temporary disability benefits from the workers’ compensation carrier. If you do so, the insurance carrier will argue that you intentionally removed yourself from the workforce and are therefore ineligible to receive lost wage benefits. Practically speaking though, if you have made the personal decision to retire early, you may not financially have any choice but to start the bureaucratic process of applying for your pension to avoid being left without an income when the workers’ compensation physician releases you to return to work or discharges you from treatment.

Should a Public Employee Apply For an Ordinary or Accidental Disability Pension Following a Work Accident?

New Jersey State employees usually have more generous pension benefits than their counterparts in private industry. Employees who have worked for the State for at least 10 years and are unable to return to the same line of work as a result of a disabling condition may apply for either an accidental or ordinary disability pension. You may apply for a pension yourself, or with the assistance of an attorney. The application for disability retirement benefits must be submitted online. See, Fact Sheet #15, attached at Appendix L.

If you were employed by the State, you should apply for an accidental disability pension if you were injured as a “direct result of a traumatic event” which permanently prevents you from doing the same job, even if you may be able to work in a different field in the future. Keep in mind though, that the definition of a traumatic event for purposes of a disability pension is much narrower than the definition of an accident under the Worker’s Compensation Act. For example, a traumatic event must be caused by an external force (i.e.: being struck by a truck), as opposed to the more broad classification of an accident, which includes injuries caused by movements of an employee (i.e.: a muscle strain caused by lifting).

Accidental disability pensions pay two-thirds of an employee’s salary, and your application must be submitted within five years of the date of last employment. If you are granted accidental disability benefits, there will be a “dollar for dollar” offset for any workers’ compensation award you receive, which discourages many attorneys from pursuing workers’ compensation claims on behalf of recipients of accidental disability pensions. However, given the uncertainty in the overburdened New Jersey pension system, it is advisable for State employees to also file a workers’ compensation claim while the pension application is pending.

If a State worker is unable to return to work due a non-occupational condition or a combination of work and non-work injuries, he may still be eligible for the less generous “ordinary” disability pension, which pays approximately 40% of average wages. There is also a “dollar for dollar” offset on the workers’ compensation award for any pension benefits paid by the State which are attributable to the work injury. Accordingly, although recipients of an ordinary disability pension may still be entitled to receive a workers’ compensation award, that award may be reduced substantially by the pension credit. If you were granted a pension due to multiple health conditions, and not just the work injury, your attorney may argue that the State is only entitled to a partial offset for the pension benefits on your workers’ compensation award. It is therefore critical for you to provide a copy of your pension application to your workers’ compensation attorney.

May I Apply For Unemployment Benefits If My Job Is No Longer Available By The Time I Am Medically Released to Return to Work?

Absolutely, but be careful not to apply for unemployment if you are still entitled to receive workers’ compensation. For instance, if you are still receiving medical treatment though workers’ compensation and you are released to return to work light duty, your temporary disability benefits should continue if your employer terminates you because no light duty work is available. However, if you are released from medical treatment with permanent light duty restrictions, and your prior job is not available, then you should apply for unemployment benefits. For a more in depth discussion regarding the interplay between unemployment and workers’ compensation.

Under What Circumstances May An Employee Sue a Third-Party For Injuries Incurred On The Job?

You cannot sue your employer or co-workers for causing the accident in which you were injured. However, if the accident was caused by the negligence of a third party — someone other than your employer or a coworker –then you may file a lawsuit against that third party outside of the workers’ compensation system. An employee may pursue both a workers’ compensation claim and a third party claim at the same time. Keep in mind though, that you may not recover duplicate benefits for the same injury. If you obtain compensation for your injuries and lost wages from a third party, you must then pay back all of the benefits you received through workers’ compensation, less the workers’ compensation carrier’s share of the attorney’s fee and a maximum of $750 towards the costs of the lawsuit. Even though you cannot have a “double recovery,” it is still important to investigate the possibility of a third party claim, since damages for such a claim may be more generous than those offered through the Workers’ Compensation Act. You may collect damages for “pain and suffering,” if you file a third party claim in the Superior Court of New Jersey, which are not recoverable in a workers’ compensation claim. Moreover, a jury would not be limited by a schedule of disabilities in rendering a third party award to you.

What Recourse Do I Have If My Employer Retaliates Against Me Because I Filed a Workers’ Compensation Claim?

The Workers’ Compensation Act prohibits retaliation against an employee for filing a claim or seeking workers’ compensation benefits. However, these claims may be difficult to prove unless there is direct evidence that you were terminated or demoted due to the filing of a worker’s compensation claim. There are subtle ways that the employer may show their displeasure over you filing a claim, short of termination. If your supervisor is being openly hostile to you after a work injury, ask your attorney to forward your employer a friendly “reminder” letter, pointing that it is illegal to retaliate against you for seeking workers’ compensation benefits, and indicating that you are eager to return to work and/or full duty as soon as you are physically able to do so. If your employer cannot be dissuaded from terminating you as a direct result of seeking workers’ compensation benefits, retaliation claims may be filed either in the Department of Labor or the Superior Court of New Jersey.

Can I Force My Employer To Create a Position For Me Once I Have Been Released to Permanent Light Duty?

The Workers’ Compensation Court does not have jurisdiction to decide issues regarding continued employment. However, your employment may be protected under federal law, including the Americans With Disabilities Act (the “ADA”) and the Family and Medical Leave Act (“FMLA”). New Jersey State law may also be implicated under the Law Against Discrimination (“LAD”).

The ADA applies to employers with 15 or more employees and prevents your employer from discriminating against you based upon a disability, or a perceived disability. The ADA and LAD do not require your employer to create a separate light duty job for you in order to continue your employment. However, your employer must provide you with a “reasonable accommodation” if one is needed to allow you to perform your job. For example, if you are able to accomplish most of your job duties, but cannot lift the occasional package which weighs over 50 pounds, your employer may be obligated to offer you assistance to accommodate your disability. On the other hand, if your injuries prevent you from performing the “essential functions” of your job, then your employer may terminate you. In short, if you just need a bit of help to keep your job, and offering that assistance does not negatively impact the business, your employer may be forced to keep your job open.

Please note that your workers’ compensation attorney’s representation will be limited to issues arising under the Workers’ Compensation Act, unless you sign a separate retainer agreement to cover another issue. You should request a referral to an attorney who specializes in employment law issues if you believe that you were discriminated against due to your disability.

Pezzano Mickey & Bornstein, LLP

Call Now For A Free Case Evaluation
(908) 923-0020