When someone suffers a work accident, their income may be significantly reduced. New Jersey Workers Compensation insurance provides three fundamental benefits, medical treatment, temporary disability benefits, and a permanency award. The medical treatment is limited to authorized (designated) medical professionals except for emergency care and if the employer (or insurance carrier) fails to designate a treating doctor or denies the occurrence of the accident. Temporary benefits are 70% of an injured worker’s Gross Salary but are capped at maximum rates depending on the year of the accident. Permanency benefits are normally only awarded after treatment is completed and a 26 week waiting period and permanency examinations are conducted and a settlement agreement reached or a trial conducted and a judicial decision rendered. So, if the injured worker was making significantly more than the maximum temporary disability rate, there may be a need to file for Bankruptcy protection.
Bankruptcy exists to provide individuals with a fresh start by eliminating debt. The Bankruptcy proceeding is a serious undertaking conducted in Federal Court and under the watchful eye of a Bankruptcy Trustee whose job is to ensure that creditor rights are protected by discovering all assets of the Bankruptcy applicant that could be used to pay creditors. A consultation with an attorney who handles Bankruptcy matters is essential to a smooth bankruptcy proceeding.
A couple weeks ago NJAccident.com published an article urging the New Jersey Supreme Court to overturn a Workers Compensation Judge’s decision and an Appellate Division Three-Judge panel’s decision upholding the denial of temporary disability benefits to Volunteer Firefighter who was injured during a fire call but who was unemployed because she was caring for her ailing father. We are glad to report that the New Jersey Supreme Court reversed the lower court decisions and awarded temporary disability benefits to Volunteer Firefighters Jennifer Kocanowski temporary disability benefits as urged by our article.
Supreme Court Summary
The New Jersey Supreme
Court summarized its decision in the Syllabus of its decision released on
February 19, 2019 as follows:
Jennifer Kocanowski was
a volunteer firefighter for seventeen years and was injured in the course of
her duties. Kocanowski applied for and was denied temporary disability benefits
because she did not have outside employment. In this appeal, the Court
considers whether volunteer firefighters must be employed to be eligible for
temporary disability benefits under the Workers’ Compensation Act, N.J.S.A.
34:15-1 to -146.
Kocanowski served fifteen years at the Finderne Fire Department in the Township of Bridgewater. In addition to her volunteer work, Kocanowski usually had outside paid employment, including working as a nanny and home health care aide. Kocanowski took a six-month leave from volunteer firefighting after her father’s death to care for her ill mother and settle her father’s estate. She returned to volunteer firefighting around July 2014, but did not resume outside employment.
An employee who was killed as a result of an automobile accident after a night out while he was working away from home was held to be in the course of his employment. In the case of Angela Ann Cavalcante versus Lockheed Electronics Company,85 N.J. Super. 320 (1964), the Workers Compensation Court applied a “reasonable” standard in its analysis of the facts to determine that the case was compensable because it was reasonable for an employee working temporarily out of state to seek some relaxation with colleagues after working irregular hours for several days. (more…)
New Jersey law, in particular, New Jersey Statute NJSA 39:15-40 provides that an injured worker who recovers monies from a Third Party must reimburse the Workers Compensation carrier monies paid by the carrier including temporary disability benefits, medical bill payments, and permanent disability benefits.
The law was written to prevent an injured worker from recovering twice for the same injury. The reality, however, is that the current version of the law which was recently upheld in an unpublished decision, Greater New York Insurance Company v. Calgano & Associates and John Phillips, New Jersey Superior Court, Appellate Division, Docket No: A-0900-11T4, gives money to insurance carriers that is not justly their money. In the Greater New York case, the Attorney representing the injured worker paid back money to in the insurance carrier but the carrier contended that it had not been paid back the correct amount due it under the New Jersey Third Party Lien law (NJSA 34:15-40). The dispute centered around whether the injured work could deduct the actual costs incurred in pursuing the Third Party or whether the worker was only entitled to deduct a maximum of $750.00 as set forth in the statute. A two-judge panel in the New Jersey Appellate Division found that the maximum amount of actual costs that could be deducted from the repayment of the lien is what was set forth in the statute — $750.00. The injured worker’s attorney had spent $12,767.23 in actual costs in pursuing and settling an action against a negligent party who had caused the injured workers accident (called a Third Party).
On occasion, an insurance company will raise the Intoxication Defense (NJSA 34:15-7) to prevent an injured worker from receiving workers compensation benefits.
The proofs necessary to establish that the intoxication is the sole and proximate cause of the injury makes the defense extremely hard to establish. The same standard applies to alcohol intoxication and/or illegal drug use.
An example of how difficult it is to establish the Intoxication Defense is the Warner v. Vanco Mfg. Inc., 299 N.J. Super. 349 (App. Div.), certif. denied, 151 N.J. 72 (1997). In Warner, the injured worker had spent the night before and the morning of his accident drinking alcohol beverages including one-half gallon of vodka. His blood alcohol level was .29 which was almost three times the legal limit to drive in New Jersey. By today’s law, the injured worker’s blood alcohol level is over three times the legal limit of .08
The Workers Compensation Judge however found that the Intoxication Defense did not apply. Co-workers testified that the injured worker was not staggering around on the worksite and that the crane hook which the injured worker was trying to attach when he fell off a scaffolding was not working properly. Thus, the Workers Compensation Judge found that the intoxication was not the sole and proximate cause of the injury and the injured worker was entitle to Workers Compensation benefits.
Another example of how difficult the Intoxication Defense is to establish is the 2006 case of Tlumac v. High Bridge Stone, 187 NJ 567 (2006). A truck driver who had a one-vehicle truck accident and whose blood alcohol level was established to be between .10 and .18 at the time of his accident was found to have a compensable workers compensation case. The New Jersey Supreme Court upheld a Workers Compensation Judge’s decision based upon the fact that other factors may have contributed to the accident including excessive hours of work in weeks prior to the accident and exhaustion from the truck driver repairing his home’s roof the night before the accident. The New Jersey Supreme court upheld the Workers Compensation judge’s decision based on reviewing the Intoxication Defense statutory language which states that the employer must prove that intoxication is the sole and proximate cause of injury or death. Thus, in Tlumac, the injured workers attorney was able to establish through evidence that Tlumac had worked excessive hours in weeks before the accident and had been exhausted from repairing his home’s roof the night before the accident.
The lesson learned when confronted with an Intoxication Defense is to determine whether, in fact, the intoxication is the “sole and proximate cause of injury or death”. If it is not, the injured worker will be entitled to workers compensation benefits even if he/she is intoxicated.
