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Pezzano Mickey & Bornstein, LLP

An employer must post the name of its workers’ compensation insurance carrier in a conspicuous location at the workplace, such as a break room. Under the terms of the policy, in order to avoid denial of insurance coverage, the employer has a duty to place the carrier on notice of any work accidents or claims of injury. After informing the insurance carrier of the injury, the employee will receive a claim number from the carrier, which must be used to obtain medical treatment. The carrier should be notified even if the employer is suspicious of the employee’s injury claim.

Should the Employer Send an Injured Worker to a Doctor Following an Accident?

Of course, in the case of an emergency, an employer should call an ambulance or otherwise transport the injured worker to a hospital. Provide care first – investigate later. If the injury does not require emergent medical care the employer may instruct the employee to make an appointment with a “company doctor,” until the workers’ compensation insurance carrier directs the employee to a specific physician within their network. If the employer does not have a company doctor, then the employer may advise the injured worker to go to his own doctor, until the insurance carrier directs treatment elsewhere. The employer should not instruct the injured worker to use his health insurance to obtain medical treatment if workers’ compensation insurance is available – to do so potentially constitutes insurance fraud. The employer is obligated to pay for 100% of all related medical bills.

What Information Should the Employer Gather After a Work Accident?

The terms of the workers’ compensation insurance policy require the employer to cooperate in providing information regarding the accident, as well as wage information, so that benefits may be paid promptly to the injured employee. The employer should prepare an accident report to document the injury. In addition, employers must file a “First Report of Injury” form, which may be found on the New Jersey Department of Labor’s website.

If there is some question about whether an accident occurred, it is advisable for the employer to obtain witness statements which should be placed in the employee’s personnel file. However, the employer is by no means required to perform this legwork. If a claim is questionable, rest assured that the carrier will conduct its own investigation. The bottom line is that even if an employer does not believe that an injury occurred, it is incumbent upon the employer to report the accident or occupational injury to the workers’ compensation carrier. The carrier will then launch an investigation and refuse to pay the claim if it is not legitimate.

The employer should provide the workers’ compensation insurance carrier with a copy of the accident report and pass on any statements made by the employee or co-workers regarding complaints of injury before or after the accident. If the accident was a result of negligence by an outside company or individual, the employer should share that information with the insurance claims adjuster. The medical bills and other benefits paid out to an injured worker may potentially be recovered from the third party who caused the accident.

The carrier will ask the employer to complete a 26-week wage statement, listing the employee’s weekly salary for the 6 month period prior to the accident. Overtime pay must be included in the wage calculation. Unfortunately, it is not uncommon for benefits to be delayed because an employer fails to complete the required forms to the carrier on a timely basis. Given the substantial cost of workers’ compensation premiums, employers should help facilitate the payment of benefits to their valued employees.

Do The Fraud Provisions Of The Workers’ Compensation Act Apply to Employers?

Yes; it is important to remember that the fraud provisions of the Workers’ Compensation Act apply to employers as well as employees. Accordingly, if the employer knowingly reports incorrect information to the workers’ compensation carrier, to deny a legitimate claim, the employer could potentially be charged with a crime in the fourth degree, and subjected to civil penalties and attorneys’ fees.

Who Pays the Workers’ Compensation Benefits?

If an employer has a valid workers’ compensation insurance policy, then the insurance carrier alone will be held responsible for the payment of benefits to the injured worker. However, if an employee is a minor, insurance coverage will only be extended if the employer obtained “working papers” for the minor. If not, the employer could potentially be held directly liable for double benefits to be paid to the underage employee. Accordingly, employers of teenagers must confirm that the appropriate paperwork is kept on file.

Is The Employer Obligated To Provide An Employee With Light Duty Work?

The Workers’ Compensation Act does not require employers to accept an injured employee back to the workforce if she is medically unable to perform all of her job duties. However, insurance carriers often encourage employers to offer “light duty” work, in an effort to stop payment of temporary disability benefits. Many businesses financially suffer from such an arrangement, if they are forced to pay a salary to an employee who is unproductive due to injury. An employer may and should stand up to the carrier’s efforts to hoist this cost onto its business. Employers generally pay high premiums to the insurance industry and should not be fooled into putting injured employees back to work prematurely, to the detriment of their businesses and the health of their employees. If the employer refuses to offer light duty work, the injured worker will continue to receive temporary disability benefits from the insurance carrier until she is released to return to work full duty, or is discharged from active medical treatment.

Is an Employer Required to Keep an Injured Workers’ Position Open?

The Workers’ Compensation Act does not prohibit an employer from terminating an employee who is injured during the course of employment. If an employee is unable to perform the “essential functions” of her job, the employee may be terminated. However, it is illegal for an employer to take any adverse employment actions against a worker in retaliation for reporting a work accident or applying for workers’ compensation benefits.

Employers should also keep in mind that other state and federal laws may be implicated in the termination of an injured worker. For example, both the federal Americans with Disabilities Act and the New Jersey Law Against Discrimination require employers to provide “reasonable accommodations” to injured workers, which could include medical leave time. For example, if an employee is able to perform the majority of her job functions, but just requires assistance from co-workers with heavy lifting, the employer should provide that accommodation. An employer is not obligated to create a job for an employee though. The safest course of action to take when considering the termination of an injured worker is to consult with an attorney who specializes in employment law.

What Should An Employer Do When An Injured Worker Is Medically Released To Return To Work?

When the employee is released to return to work by her doctor, the insurance carrier will terminate payment of temporary disability benefits, often the same day. Accordingly, employers should permit the injured worker to return to work as soon as possible. If the position is no longer available because it has been filled or eliminated, advise the employee as soon as possible, so that she may apply for unemployment compensation benefits. Employers should immediately advise the workers’ compensation carrier of the date when an injured worker returns to work, to avoid the overpayment of temporary disability benefits by the insurance carrier.

What if My Company Did Not Carry Workers’ Compensation Insurance at the Time of the Accident?

New Jersey law requires that all corporations, partnerships, limited liability companies, and sole proprietorships with employees (other than the owner) must have workers’ compensation insurance in place. If you are a sole proprietor, be sure to obtain a rider on your policy, extending the workers’ compensation coverage to yourself. Unfortunately, many small business owners try to save a penny by excluding themselves from the policy and regret that decision if they are subsequently injured.

The failure to carry such insurance has civil and criminal implications. An employer who is charged with failure to obtain the required workers’ compensation insurance may be charged with a fourth-degree crime and assessed penalties of up to $5000 for the first ten days of non-compliance, and up to $5000 for each additional ten-day period thereafter for continued failure to secure insurance coverage. If the employer is incorporated, liability may extend to the corporate officers individually, and those penalties are not dischargeable in bankruptcy. Accordingly, if you start your own business it is critical for you to obtain workers’ compensation insurance through a reputable agent.

For more information on Responsibilities of An Employer In NJ, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (908) 923-0020 today.

Pezzano Mickey & Bornstein, LLP

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