In New Jersey, injured workers must prove two things before being entitled to Workers Compensation Permanency benefits.
First, the injured worker must provide objective medical evidence of restriction of the body or a part of the body. Secondly, the injured worker must prove either a lessening to a material degree of working ability or substantial impairment of non-work activities.
How do you prove the two elements? The first is proven with medical testimony from a doctor who has experience in providing an expert opinion on permanent disability. The second is proven with a combination of medical testimony and testimony from the injured worker.
In the case of Perez v. Pantasote, 95 N.J. 105 (1984), the New Jersey Supreme Court clarified the definition of permanent disability as defined by the New Jersey Legislature in N.J.S.A. 34:15-36 and provided guidelines to be applied by Workers Compensation judges when determining whether the injured worker has met the above requirements. Two other cases, also brought by an injured worker with a surname of Perez, help to further clarify and explain the elements required to prove entitlement to New Jersey Workers Compensation Permanency Benefits. The second Perez case is Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), certif. denied., 140 N.J. 277 (1995). The Third case is Perez v. Capitol Ornamental, 288 N.J.Super. 359 (App. Div. 1996). It should be noted that there were three separate injured workers and not the same injured worker for all three cases. A statistician could tell us what are the chances that there would be three cases entitled Perez which deals with defining what proofs are required before permanent disability benefits can be awarded in New Jersey.
In Perez v. Capitol Ornamental, the Appellate Division held that a Workers Compensation Judge must take into account the impact on work into account in determining a permanent disability award. In Perez v. Capitol Ornamental, the injured worker suffered a herniated disc. Prior to his work injury, Perez had been a farm laborer, landscaper, and a construction worker but had very little education. When the case was tried before the Workers Compensation Judge, Perez had been out of work for years. The Workers Compensation Judge commented in the case that “… the award which I presented, in my opinion, was determined on a basis and with the purpose of being consistent with similar injuries previously presented to me for disability determination”. The Appellate Division took that to mean that the Workers Compensation Judge was simply giving a percentage of disability award based strictly on the injury without considering the particular impact on a specific injured worker and his ability to return to work.
The Appellate Division wrote:
Clearly, an educated person who earns his living, reading, writing and performing other sedentary duties, having the same injury and the same residuals as the petitioner here, may have the same orthopedic disability as the petitioner. However, that same person is less disabled in terms of an ability to work than this petitioner, an illiterate laborer who is incapable of doing anything more than the job which is orthopedic disability prevents him from doing.