Join Us for This Live Webinar on Monday, July 27, 2020 at 12PM EST
In this LIVE webinar on Monday, July 27, 2020 at 12 PM EST, Greg Lois will provide an overview of wage reconstruction and temporary disability benefits in New Jersey workers’ compensation cases. We will discuss:
When wage reconstruction is required under New Jersey’s Workers’ Compensation Law.
When temporary disability benefits should be issued and how to calculate the benefit.
Practical aspects of defending cases where the employee’s wage is at issue for the purpose of temporary or permanent disability benefits.
To register for our New Jersey Workers’ Compensation Webinar Series, a monthly discussion click the button below (or register here).
Download the handout, with cases and statutory citations, from the live training on COVID-19 and workers’ compensation here:
Question: What are the state's laws regarding the compensability of exposure to a virus? Could illnesses caused by coronavirus be covered in this jurisdiction?
NEW YORK: Yes, a disease contracted by an employee within the course of employment may be compensable. For example, illnesses or infections caused by specific workplace exposure such as a needlestick incident will be found compensable. In general, illnesses or infections caused by exposure to co-employees or general workplace risks will not be compensable. Most coronavirus claims will not be compensable.
NEW JERSEY: Yes, an infection caused by exposure in the workplace can be compensable as an occupational disease. For non-first responder employees, illness or infection will be compensable where there has been a specific, documented incident resulting in infection. For first responders, mere 'potential exposure' triggers a presumption of compensability. Most coronavirus claims will not be compensable.
LONGSHORE: Yes, infections caused by exposure in the workplace are compensable. To be found compensable, the exposure must be the result of a specific incident and not simply exposure to a general health risk. Most coronavirus claims will not be compensable.
Question: When would the condition be covered, when would it not be covered? What is the standard of proof the claimant must meet?
NEW YORK: A disease is considered to be compensable if it 'is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by a peculiar place in which particular claimant happens to work . . . or caused by ordinary contact with a fellow employee.' In general, ailments contracted from common exposure not specific to the workplace should not be found compensable. However, where the employee can show that the nature of the employment brought with it exposures to specific causes of disease or infection, then the resulting condition can be compensable. Examples of diseases that have met this standard includes pulmonary diseases such as bronchitis, infectious hepatitis, and staph infections. In those cases, the employee was able to demonstrate or allege a very specific exposure that was unique or peculiar to the employment. Additionally, where there has been a specific definite exposure, for example a teacher who contracted mumps after exposure to pupils during an epidemic, that illness was found compensable. Because the risk of coronavirus infection is not peculiar to any one workplace, with the exception of perhaps some medical or emergency response employments, a theory of general workplace exposure is unlikely to succeed for claimants alleging they contracted the disease due to exposure to co-employees or the general public in their workplace.
NEW JERSEY: The Act defines the phrase “compensable occupational disease” to '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.' A petitioner has the burden of proving by a preponderance of the evidence that his or her environmental exposure was a substantial contributing cause of the alleged occupational disease. A petitioner must prove legal causation (the injury is work-connected) and medical causation (the injury is a physical or emotional consequence of work exposure). It is sufficient to prove that the risk or danger in the workplace was a contributing cause. Direct causation is not required. Activation, acceleration or exacerbation of disabling symptoms is sufficient. In general, it is extremely unlikely that a New Jersey petitioner will be able to satisfy this requirement by alleging contacts with co-employees or the general public resulted in contracture of the disease. The exception, discussed below, is New Jersey's 'first responders' in light of the recent (2019) law change granting them a presumption of compensability (see below).
LONGSHORE: Any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally. There is a three-step test for determining whether an employee has a compensable occupational disease:
First, the employee must suffer from a “serious derangement of health” or “disordered state of an organism or organ.”
Second, the specific working conditions of the employment must be the cause of the disease.
Third, the hazardous conditions must be “peculiar to” one’s employment as opposed to other employment or general living. In other words, there must be something extraordinary about the work exposures that directly relates to the condition allegedly disabling the affected worker.
In general, a Longshore or Defense Base Act claimant will not be successful alleging a claim for infection or illness unless there has been a specific incident of exposure; general exposure to co-employees or the public will not meet the standard for compensability.
If an employee tests positive, does the WC policy cover the employer testing employees for the virus?
NEW YORK: Yes, if the underlying condition is compensable, then testing or diagnostic treatment necessary to detect or confirm the condition would be medical treatment and the responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the WCL.
NEW JERSEY: Yes, where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier. Negative test results and 'screening' or preventative testing is not covered by the Act.
LONGSHORE: Yes, where the claimant has a compensable condition the employer/carrier has an absolute duty to provide all necessary medical care, which includes diagnostic testing. Negative test results and 'screening' or preventative testing is not covered by the Act.
What About First Responders?
NEW YORK: Pursuant to WCL 10(3)(a), testing and diagnosis for first responders is covered when 'in the course of performing his or her duties, [the first responder] exposed to the blood or other bodily fluids of another individual or individuals.' This is an exception to the general rule that 'testing' is not covered until/unless the underlying medical condition is compensable.
NEW JERSEY: N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. 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.'
LONGSHORE: Not applicable.
What About Quarantine? How Are Employees Compensated for Lost Time Due to Quarantine?
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.
Questions about Coronavirus (COVID-19) and Workers’ Compensation?
Contact Greg Lois, managing partner at LOIS LLC with questions.
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New York’s maximum compensation rate – for temporary total disability and permanent disability – increases effective July 1st to $934.11. The new, higher rate will be in effect until June 30, 2020 and applies to all cases with dates of loss after today (after July 1, 2019). On Monday, July 15th we will be holding a question-and-answer webinar on this change to discuss how this impacts claims and exposures (register here to attend live via webinar at 12PM or 3PM EST).
How is the New York Maximum benefit Rate Calculated?
The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2(16);15(6)).
The Department of Labor reported to the Superintendent of the Department of Financial Services that the New York State average weekly wage for 2018 was $1,401.17. Accordingly, the maximum weekly benefit rate is $934.11 for compensable lost time for workers’ compensation claims with dates of accident during the period from July 1, 2019 through June 30, 2020.
This will have an impact on lost-time wage compensation (temporary disability benefits) as well as permanency benefits (both Loss of Wage Earning Capacity and Schedule Loss of Use Awards).
Wage Compensation: Cash Benefits.
Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Rules: Compensation (money allowance – the wage replacement) is not paid to the injured employee for the first seven days of disability. NY WCL § 12. If the disability continues for 15 days or more, the compensation will be paid going back to the first day of time lost. The fourteen lost days do not have to be consecutive. If the disability is for fourteen days or less, then there is no wage replacement for the first seven calendar days, only the eight through fourteen days lost.
Partner Declan Gourley recently won an appeal that defines what a good faith effort and a “meaningful work search” is for a highly-qualified claimant. By winning this appeal, all money benefits were terminated! This decision illustrates the value of a carefully-prepared cross examination when challenging the validity of a work search conducted by the claimant.
The claimant, a registered nurse, sustained a work-related injury while lifting an oxygen tank on November 5, 2012. An IME was conducted by Dr. Pagano, who opined that the claimant had reached MMI and had no more than a mild disability. Dr. Pagano found that the claimant could return to work with a 50-pound lifting restriction. The carrier raised the issue of labor market attachment and directed the claimant to produce evidence of her search for work. At the next hearing, the WCLJ directed the carrier to suspend payments because the claimant did not attend a hearing held and failed to produce the directed work search evidence. Continue reading LOIS Attorneys Prevail on Appeal Regarding Meaningful Job Search→
This is the video from our November 19, 2018 live webinar presented by attorneys John Marzolla and Tim Kane. The experienced workers’ compensation defense attorneys discuss their approaches to evaluating New York workers’ compensation claims for exposure.