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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 The reality, however, is that the current version of the law which was recently upheld in an unpublished decision, Greater New York Insurance Company v. Calgano & Associates and John Phillips, New Jersey Superior Court, Appellate Division, Docket No: A-0900-11T4,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).
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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.
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.
Temporary Disability Benefits end when the injured worker returns to work or the injured worker reaches medical maximum improvement (commonly referred to as MMI). (more…)
