TLDR
Most coronavirus claims will not
be compensable under New Jersey’s Workers’ Compensation Act. While infection or
illness caused by workplace exposure can be found compensable the petitioner
must show either (a) a specific incident causing the infection or illness or
(b) exposure to “peculiar” conditions unique to the employment which resulted
in the illness. Simply working with an infected co-employee or being exposed to
the general public will generally not satisfy the “peculiar” requirement. The only exception to this general rule
against compensability is that for first responders, mere “potential exposure”
triggers a presumption of compensability. Medical treatment is required for
compensable cases and would include testing; however pre-injury testing and
prophylactic measures such as quarantine are not considered “medical treatment”
in New Jersey.
Part I. How Traumatic/Specific Incident Claims Will be Handled: Nearly All Will Be Denied
§1.01 Comparing Traumatic Injury Claims to Occupational Disease Claims
Generally, the concept of what is
a “traumatic injury” is simple: an unexpected accident or incident which
injures an employee. The petitioner bears the burden of demonstrating a
specific incident caused illness or infection.
§1.02 Standard of Proof for Entitlement to Medical and Wage-Replacement Benefits in Accidental Traumatic Injuries
N.J.S.A. 34:15-7 provides in
part:
(C)ompensation for personal
injuries to, or for the death of, such employee by accident arising out of and
in the course of employment shall be made by the employer.
That compensation will be paid
for an injury either partial in character or total which is permanent.
A petitioner must prove legal causation (the injury is work-connected) and direct medical causation (the injury is a physical or emotional consequence of work exposure). To be compensable, the claimant must show a direct link from a specific exposure to the resulting condition. For example, a “needlestick” incident which occurred during the course of employment, where the exposure to the patient’s blood or bodily fluids directly led to the contracture of the disease or illness.
§1.03 The Standard of Proof for Permanent Disability Benefits in an Accidental Traumatic Claim
This is the prime legal/factual
issue to be established, negotiated, challenged, and litigated in a workers’
compensation case. In traumatic injuries, where the petitioner alleges
permanent disability resulting from a specific accident, often the only avenue
of defense is to challenge the “nature and extent” of permanent disability. To
do so vigorously, the factual/medical investigations discussed above must be
conducted. Then, the legal standards for degree of permanency can be applied.
Permanent partial disability is defined at N.J.S.A. 34:15-36 as “a permanent
impairment caused by a compensable accident or compensable occupational
disease, based upon demonstrable objective medical evidence, which restricts
the function of the body or of its members or organs.”
As set forth at length above, in Perez v. Pantasote, Inc., the
Supreme Court states that:
In summary, then, the employee
must first prove by demonstrable objective medical evidence a disability that
restricts the function of his body or its members or organs. Second, he must
establish either that he has suffered a lessening to a material degree of his
working ability or that his disability otherwise is significant and not simply
the result of a minor injury. The burden of proving both of these elements
rests with the petitioner.[1]
The Supreme Court wants
petitioners to present objective medical evidence to establish that a permanent
disability exists. What does this mean? What tests meet this burden? The
Supreme Court has found that range of motion test results are generally
subjective and alone will not satisfy the requirements of “demonstrable
objective medical evidence.”[2]
There is no numerical threshold to measure “minor injuries.” If there has not
been an appreciable impairment of the employee’s ability to work, we may
look to a second criterion, whether there has been a disability, in the broader
sense of impairment, in carrying on the “ordinary pursuits of life.”
A lack of complaints will not bar
recovery. In Porter v. Elizabeth
Bd. of Educ.,[3] the
petitioner underwent disc surgery and demonstrated objective medical evidence
of disability, but he did not complain of pain or difficulty. However, he was
awarded benefits. The Court found that “his injury was not minor and the
legislature never intended to deny compensation for such disability simply
because the petitioner did not complain enough.”
Minor respiratory conditions are
not eligible for permanent disability awards under New Jersey’s Workers’
Compensation Law; this is because many workers suffer from occasional
bronchitis or mild asthma with no significant effect on their ability to work
or their quality of life.[4] It
is possible for a workers’ compensation claimant to have a work-related health
problem that is not sufficiently debilitating to be compensable.[5] In Perez v. Capitol Ornament, Concrete
Specialties, Inc.,[6] the
Appellate Panel instructed that a Workers’ Compensation Judge must consider
impact of injury on a petitioner’s ability to work in view of his limited
educational and intellectual resources and not base his decision on a
“range” of disability for a particular type of injury. While this is
a “common sense” decision, it also destroys the continuity of awards since a
fractured arm will engender more exposure in a laborer than the same injury to
a lawyer.
§1.04 Benefits and Treatment in an Accidental Traumatic Claim.
The New Jersey Workers’
Compensation Act provides four benefits to workers (and their dependents) who
suffer a job-related injury. The four benefits are:
- Medical Benefits. Employers must provide
immediate, necessary, and curative medical treatment to an injured worker. The
employer directs and controls care. Medical care is provided without prejudice
to the employer’s ability to later argue that injury was not work related.
- Temporary Disability Benefits. Employers must
provide wage continuation benefits to employees during recovery from an injury.
- Permanent Disability Benefits. An employee,
injured on the job, who can prove permanent residual effects of the injury is
due monetary compensation. These benefits can be for partial or total
disability.
- Death benefits. Employers must contribute to the
funeral costs of an employee killed on the job. If the decedent had dependents,
the employer must pay benefits to the deceased worker’s survivors.
§1.04 Medical Benefits in Regard to Infectious Diseases.
Where the illness is found
compensable, medical treatment includes diagnostic testing and is the sole
responsibility of the employer/carrier.[7]
Negative test results and “screening” or preventative testing is not covered by
the Act. Quarantine or isolation is a preventative/prophylactic measure that is
not covered by workers’ compensation. Lost time due to quarantine would be
compensated either directly by the employer (if at all), or in the case of
furlough or work shutdown, by the state unemployment remedy.
Part II. How Occupational Exposure Claims Will be Handled: Deny Them!
§2.01 Defining Occupational Disease
Occupational disease can range
from Lyme disease contracted by a golf-course groundskeeper from a tick[8] to
delayed-onset post-traumatic stress disorder. N.J.S.A. 34:15-31 provides:
a. For the purpose of this
article, the phrase “compensable occupational disease” shall include
all diseases arising out of and in the course of employment, which are due in a
material degree to causes and conditions which are or were characteristic of or
peculiar to a particular trade, occupation, process or place of employment.
b. Deterioration of a tissue,
organ or part of the body in which the function of such tissue, organ or part
of body is diminished due to the natural aging process thereof is not
compensable.
§2.02 Liable Carrier or Employer
This rule of statutory
construction from the New Jersey Supreme Court’s holding in Bond v. Rose Ribbon Carbon & Mfg. Co.,[9]
instructs that where an occupational disease is caused or aggravated by
exposure during a period when there are several respondents or insurance
carriers on the risk, the last carrier shall be responsible for payment of
compensation. The Bond Doctrine has since been drafted
into the statute.
However, to impose liability on
the “last employer” in an occupational disease case, there must be a
showing of actual causation or contribution to the petitioner’s condition by
the work exposure during such employment.[10]
§2.03 Types of Occupational Claims Found Compensable
Occupational diseases or
conditions compensable under New Jersey’s Act include hearing loss[11],
tinnitus[12],
cardiovascular or cerebrovascular injuries[13],
cardiac injuries[14],
psychiatric[15],
and orthopedic.
§2.04 Benefits and Treatment in an Occupational Exposure Claim.
The benefits available to a
petitioner alleging injury or disability due to an occupational exposure are
the same as the benefits available to a petitioner alleging a specific
traumatic injury. N.J.S.A. 34:15-32 provides:
The compensation payable for
death or disability total in character and permanent in quality resulting from
an occupational disease shall be the same in amount and duration and shall be
payable in the same manner and to the same persons as would have been entitled
thereto had the death or disability been caused by an accident arising out of
and in the course of the employment.
In determining the duration of
temporary and permanent partial disability, either or both, and the duration of
payment for the disability due to occupational diseases, the same rules and
regulations as are now applicable to accident or injury occurring under this
article shall apply.
The New Jersey Workers’
Compensation Act provides four benefits to workers (and their dependents) who
suffer a job-related injury. The four benefits are:
- Medical Benefits. Employers must provide
immediate, necessary, and curative medical treatment to an injured worker. The
employer directs and controls care. Medical care is provided without prejudice
to the employer’s ability to later argue that injury was not work related.
- Temporary Disability Benefits. Employers must
provide wage continuation benefits to employees during recovery from an injury.
- Permanent Disability Benefits. An employee,
injured on the job, who can prove permanent residual effects of the injury is
due monetary compensation. These benefits can be for partial or total
disability.
- Death benefits. Employers must contribute to the
funeral costs of an employee killed on the job. If the decedent had dependents,
the employer must pay benefits to the deceased worker’s survivors.
Medical treatment will include
testing for claims where the illness is found to be compensable. Quarantine or
isolation is a preventative/prophylactic measure that is not covered by
workers’ compensation. Lost time due to quarantine would be compensated either
directly by the employer (if at all), or in the case of furlough or work
shutdown, by the state unemployment remedy.
§2.05 Special Rules for Public Safety Workers in New Jersey
N.J.S.A. 34:15-31.5 provides a
presumption of compensability if a public safety worker can demonstrate
exposure at work to “the excretions, secretions, blood or other bodily fluids
of one or more other individuals or is otherwise subjected to a potential
exposure, by the other individual or individuals, including airborne exposure,
to a serious communicable disease, or is otherwise determined to be infected
with or at significant risk of contracting the serious communicable disease.”
The Statute also states “If it is ascertained that the public safety worker has
contracted a serious communicable disease or related illness under the circumstances
set forth in subsection a of this section, there shall be a presumption that
any injury, disability, chronic or corollary illness or death of the public
safety worker caused by, attributable to, or attendant to the disease is
compensable under the provisions of R.S. 34:15-1 et seq.”
First Responder is defined as
…a member, employee, or
officer of a paid, partially-paid, or volunteer fire or police department,
force, company or district, including the State Police, a Community Emergency
Response Team approved by the New Jersey Office of Emergency Management, or a
correctional facility, or a basic or advanced medical technician of a first aid
or rescue squad, or any other nurse, basic or advanced medical technician
responding to a catastrophic incident and directly involved and in contact with
the public during such an incident, either as a volunteer, member of a
Community Emergency Response Team or employed or directed by a health care
facility.
Have a question about a coronavirus claim in New Jersey?
Contact Greg Lois, Managing Partner of Lois Law Firm LLC, with any questions.
[1] Perez v.
Pantasote, Inc., 95 N.J. 105 at 118 (1984).
[2] Colon v.
Coordinated Transp., Inc., 141 N.J. 1 (1995).
[3] Porter v.
Elizabeth Bd. of Educ., 281 N.J. Super. 13 (App. Div. 1995).
[4]
N.J.S.A. 34:15-36, which states “Injuries such as minor lacerations, minor
contusions, minor sprains, and scars which do not constitute significant
permanent disfigurement, and occupational disease of a minor nature such as
mild dermatitis and mild bronchitis shall not constitute permanent disability
within the meaning of this definition.”
[5] Earl v. Johnson
& Johnson,
158 N.J. 155 (1999).
[6] Perez v.
Capitol Ornament, Concrete Specialties, Inc., 288 N.J. Super. 359 (App. Div. 1996).
[7]
N.J.S.A. § 34:15-15.
[8]
Bird v. Somerset Hills Country Club, 309 N.J. Super. 517 (App. Div.
1998), cert. denied, 154 N.J. 609 (1998).
[9] Bond v. Rose Ribbon Carbon & Mfg. Co., 42 N.J. 308
(1964).
[10] Vastino v. Man-Roland, Inc., 299 N.J.
Super. 628 (App. Div. 1997), cert. denied, 151 N.J. 464 (1997).
[11]
N.J.S.A. 34:15-35.10 through N.J.S.A.
34:15-35.22
[12]
See Schorpp-Replogle v. N.J.
Mfrs. Ins. Co., 395 N.J. Super. 277 (App. Div. 2007).
[13]
N.J.S.A. 34:15-7.2.
[14]
Id.
[15]
Goyden v. State,
Judiciary, Superior Court of N.J., 256 N.J. Super. 438 (App. Div. 1991), aff’d.,
128 N.J. 54 (1993).