New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

On April 17, 2009, the Appellate Division decided Tracey Wilde v. Township of Cranford, Docket No.: A-3391-07T2. In the case, the Workers’ Compensation Court awarded dependency benefits to petitioner, Tracey Wilde (“Tracey”) and her two children. On appeal, the Township of Cranford contended the court erred in finding that petitioner’s husband, Russell Scott Wilde, Sr., (“Wilde”) suffered a stress-induced occupational suicide which was compensable.

Wilde joined the Cranford Police Department in 1985. He was promoted to detective in 1990, sergeant in 1994, and lieutenant in 1999. As lieutenant, Wilde was responsible for supervising approximately fifteen patrolmen and two sergeants. During the course of his fourteen-year career, Wilde received numerous awards for professionalism and heroism.

On September 16, 1999, when Hurricane Floyd struck, Wilde was designated Incident Commander and he was put in charge of coordinating the Township’s rescue and recovery efforts. From September 16, 1999 to September 18, 1999, Wilde worked approximately 38 hours in a 51 hour period.

Tracey testified that her husband did not come home from work on September 16, 1999. When she visited him at the police station on September 17, 1999, she stated he was the only one “with his heavy rain gear on” even though the sun was out. She also testified that her husband was “wired” when he arrived home on that Friday evening, he could not “settle down,” and he did “not really” sleep “much” that night. Thereafter, Wilde left for work at approximately 5:00 or 5:30 a.m. Saturday morning and did not return home until approximately 6:00 p.m.

Later that evening, Tracey and Wilde attended a fellow police officer’s wedding. Tracey testified that her husband looked “very tired” so she drove to the wedding. During the reception, Tracey did not note anything unusual in his behavior. Before leaving the wedding, Wilde spoke to his father, Harry Wilde, who was Chief of Police for the Township. After Wilde spoke with his father, Tracey testified he “seemed more wired again and more…on edge and worrying about the next day, and what…his duties were going to be.”

As Tracey drive home, Wilde appeared tired, and he was talking about the next day. Tracey testified that Wilde appeared to be worried about what was going to happen the next day, which was unusual because he was not a “worrier.” After arriving home, Tracey and Wilde went to their bedroom, wherein Wilde was discussing what happened at work and stating he was “very exhausted.” Tracey further testified that although her husband was not a religious person, he stated “you have to be so thankful for God. You must have an angel looking over you….You know how lucky we are. We had an angel looking over us.” According to Tracey, her husband “never talked like that before,” and it was “very strange.”

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On October 1, 2008, Governor Jon Corzine signed into law five bills aimed at fixing New Jersey’s Workers’ Compensation System. Significantly, the bills should reduce the long delays in making injured workers whole. The legislation, the State’s first workers’ compensation overhaul in thirty years, was the product of public hearings that followed a series of articles in the The Star-Ledger of Newark that were critical of systemic delays. The articles also described a bureaucracy that was easily manipulated by employers and their attorneys. 

The bills give workers’ comp judges more authority to enforce their orders, penalize employers who fail to provide workers’ comp insurance coverage for their workers, and ensure that employees injured on the job are given prompt and adequate treatment as well as short term disability benefits. In pertinent part, the bills provide:

• S-1913: Permits workers’ comp judges to hold a separate hearing on any issue of contempt, and if contempt is found, the successful party can file a motion in Superior Court for enforcement. A judge may also impose costs and simple interest on money due and, in the event of an unreasonable delay, may award legal fees of up to 20 percent of the award.

• S-1914: Strengthens enforcement actions against employers for failure to provide workers’ comp coverage. Those employers that knowingly fail to provide coverage can be charged with a second, third, or fourth degree crime and can be fined up to $5,000.

• S-1915: Requires all employers to submit proof of workers’ comp coverage as part of its annual report. If a statement of proof is not included, the annual report will not be considered as properly filed.

• S-1916: Requires that when a doctor states an injured worker is in need of emergent medical care that employer has not authorized, the worker can file a request for treatment with the Division of Workers’ Compensation. The division and the employer must answer the request within five calendar days.

•  S-1917: Revises the membership of the Compensation Rating and Inspection Bureau, presently made up primarily of insurance industry representatives. Instead, the bill requires the Department of Banking and Insurance to include members who do not represent the industry, but rather representatives of employers, labor, and licensed insurance producers. 

It will be interesting to see how these new measures alter the landscape of the New Jersey Workers’ Compensation System. Hopefully, these laws will prove to be adequate in aiding injured workers and ensuring unscrupulous employers and persons will not be able to “work” the system.       

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Last week we spoke about medical benefits in the New Jersey Workers’ Compensation System. In this entry we will give a brief overview regarding total permanent disability benefits, and partial total disability benefits.

The third type of benefit that an injured worker is entitled to receive under the New Jersey Workers’ Compensation Act is commonly referred to as total permanent disability benefits and/or partial total disability benefits. Total permanent disability benefits are reserved for the injured worker that has been declared permanently disabled and is unable to return to work. Partial total disability benefits are benefits that are paid for injuries that have not rendered the employee totally disabled.

Permanent and partial total disability benefits are often a one-time lump sum payment, or bi-weekly payments that an injured employee will receive at the end of his or her workers’ compensation case. The amount of money that the injured employee will receive is based upon a statutory schedule established by The New Jersey State Legislature and is particular to the severity of the injury, and the injury to the particular body part.

The benefits associated with permanent and partial total disability are based on a weekly compensation system. The seriousness of the disability is taken into consideration in awarding permanent and partial total disability benefits. The more serious the injury, the greater the award an injured worker can expect to receive. The benefits paid as a result of receiving permanent and partial total disability benefits are not subject to taxation by either the State or Federal Government. Furthermore, attorney’s fees associated for representation in a New Jersey workers’ compensation case are deducted from an award of permanent and partial total disability benefits. Additionally, certain expenses that an attorney expends in representing an injured worker are also deducted from the award of permanent and partial total disability benefits. 

It is important to remember that if a public safety officer is declared totally disabled and is going to collect an ordinary disability pension, there will be a monetary offset for the pension award in regard to the money received for total and/or partial disability benefits under the New Jersey Workers’ Compensation System. Furthermore, if the public safety officer is awarded accidental disability benefits, the workers’ compensation permanent and/or partial disability award will be negated in its entirety.

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We haven’t spoken about the New Jersey Workers’ Compensation system in a little while and there is still a great amount of information regarding the available benefits that all public safety officers and first responders should be made aware of. With that being said, let’s talk a little about medical benefits under the New Jersey Workers Compensation Act. 

Under the New Jersey Workers’ Compensation system, the injured employee is entitled to reasonable and necessary medical treatment to cure and relieve the effects of the injury, illness, or condition that occurred either on the job or as a result of the job. In New Jersey, due to the fact that the employer is responsible for payment of 100% of the injured worker’s medical treatment associated with the workplace injury, the employer has the right and ability to control treatment. What this means, is that the employer or the employer’s workers’ compensation insurance carrier will select the doctors that will treat the injured worker for his or her injury. 

When the injured worker is treated by medical physicians that have been chosen by the employer or the employer’s insurance company, this treatment is commonly referred to as “Authorized Treatment”. However, if the injured employee receives treatment for his or her workplace injuries from physicians, doctors, or hospitals that have not been chosen or authorized by the employer or the employer’s insurance company, this particular treatment is referred to as “Unauthorized Treatment”. 

The New Jersey Workers’ Compensation Act only requires employers to make payment for “authorized treatment” in a New Jersey workers’ compensation case. Therefore, should an injured employee obtain treatment from physicians or medical providers that have not been chosen by their employer or their employer’s insurance company, he or she may be responsible for paying these medical bills out of his or her own pocket.

It is important for an injured employee to understand that the only medical treatment that has to be provided under The New Jersey Workers’ Compensation Act is treatment that is medically necessary to cure and relieve the effects of the injury or condition. Palliative medical treatment does not have to be provided by the employer. Palliative medical care has been described as medical care or treatment that concentrates on reducing the severity of pain associated with the injury, rather than halting or delaying the progression of the injury itself. To clarify, palliative medical treatment is care that provides pain relief only. It is not medical care or treatment that will improve the medical condition of the injured worker.

Medical treatment under the New Jersey Workers Compensation Act must continue until one of two events occurs; the employee is returned to work, or in the alternative, a doctor declares that the employee has reached maximum medical improvement or “MMI”. When one of these two events occurs, medical benefits and temporary total disability benefits will cease, and the injured employee’s claim will move to the establishment of a permanent disability rating and thus the settlement of the case. We will discuss permanent disability and partial total disability in a later entry.   

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As you may remember from the June 27, 2008 blog entry, injured New Jersey Public Safety Officers may be entitled to receive Sick Leave Injury benefits or “SLI” benefits due to their inability to report for duty due to illness, injury, or infirmity that occurred on the job. This particular entry is written by Michael P. DeRose, a paralegal with our office that is in charge of our firm’s SLI appeal unit. Michael has been involved with SLI appeals for several years and has authored hundreds of appeals on behalf of injured Police, Fire and Corrections Officers. Michael is temporarily leaving our firm this fall to attend law school. However, he will continue to lead our SLI appeal unit from Michigan given the advances in technology and telecommunications. We look forward to his return as a summer intern and eventually as an attorney at law.

In certain circumstances, SLI benefits are issued in lieu of temporary total disability benefits associated with the NJ Workers’ Compensation Act. The initial threshold for a Public Safety Officer to receive SLI benefits is governed by N.J.A.C. 4A:6-1.6.  As mentioned in previous blog entries, SLI benefits allow a Public Safety Officer to receive 100% of his or her base weekly wage notwithstanding overtime pay, for a period of one calendar year beginning on the date the injury occurred. As any injured officer knows, when he or she is unable to report for duty for a certain length of time, it is much more beneficial to receive SLI benefits as opposed to temporary total disability benefits. Thus, it is important for all Public Safety Officers in New Jersey to be familiar with the common reasons offered by the appointing state agency for denial of SLI benefits.

The most common reason for denying an officer’s application for SLI benefits is the presence of a preexisting injury to the same body part upon which the application for benefits is based. For example, if an officer injures his or her lumbar spine in 2005 and then re-injures the lumbar spine in 2008, he or she will be denied SLI benefits associated with the 2008 injury. The grounds for said denial is that he or she aggravated a preexisting injury (the injury that occurred in 2005). However, state agencies tend to take advantage of this provision, often unjustifiably denying SLI benefits. For example, if that same officer who injured his or her lumbar spine in 2005 suffers an injury that caused a herniated disc in his or her thoracic spine in 2008, the individual cannot be denied benefits on the premise that he or she aggravated a preexisting injury. Never the less, state agencies routinely attempts to blanket the injury as a “back injury” and therefore will deny the application for SLI benefits. Counterfeit denials such as these are precisely the reason why it is important to act swiftly and speak to your union representative about appealing the state’s decision.

The next provision commonly utilized by the state agencies when denying SLI applications is refusing to pay benefits on the grounds that the individual’s injury was not “work-related.” This may sound asinine due to the fact that law enforcement personnel can only apply for SLI benefits when injured on the job, however we repeatedly see denials based on this premise. A state Agency will often justify denying benefits stating that the Public Safety Officer was not “aware of his or her work environment at all times,” thus, resulting in his or her injury. Once again, if such a reason based on this theory of negligence is stated as the basis for the denial of benefits, act swiftly to appeal the decision.

After reading countless denial letters issued by state agencies, I would be remiss if I did not mention one more reason typically posited for an applicant’s SLI denial. This reason pertains to a “delay in reporting the injury to the appropriate authority”. As anyone who has been injured is aware, on certain occasions, an injury does not manifest of become known to the Public Safety Officer until a day or two after the incident which caused the injury. Once again, state agencies frequently utilize this factor to its advantage in denying benefits. However, the New Jersey rule governing SLI requires the injured Public Safety Officer to report the injury pursuant to “occurrence or discovery.” Therefore, it is commonplace for a Public Safety Officer to be denied SLI benefits when he or she reports an injury pursuant to discovery, despite comporting with the governing administrative rule. Once again, a Public Safety Officer that finds themselves in this situation is entitled to SLI benefits so long as the circumstances surrounding his or her injury do not conflict with the remaining provisions of the code.

In sum, when a Public Safety Officer is denied SLI benefits, do not panic. Many applicants are initially denied benefits as the individual with the responsibility of issuing benefits and denying applications may not be entirely familiar with the specific situation as it applies to the applicable administrative code. It is important to assert your rights and act promptly to appeal the denial. This can most likely be accomplished by contacting your union representative. The matter will then be handled by the union’s attorney who will issue a formal appeal on your behalf. Bear in mind that the injured Public Safety Officer only has 20 days to notify the state of his or her intent to appeal the denial of benefits. The 20 day clock begins to run upon receipt of the official SLI denial letter. So once again, subsequent to receipt of a denied SLI application, act swiftly and assert your rights to receive the benefits you are entitled to as New Jersey Public Safety Officer.

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Let’s talk about temporary total disability benefits injured public safety officers are entitled to receive under the New Jersey Workers’ Compensation Act. 

The New Jersey Workers Compensation Act provides each employee who has suffered a workplace injury with temporary total disability benefits. Temporary total disability benefits are those benefits that are most akin, or similar, to temporary disability benefits one would receive from The State of New Jersey during the period of time that he or she could not work as a result of an injury or illness. However, temporary total disability benefits in the workers’ compensation arena are limited to those individuals who have been injured at work. 

An injured worker in the state of New Jersey can expect to receive 70% of his or her gross average weekly wage for 26 weeks before he or she was injured subject to a maximum amount established by The New Jersey Department of Labor. The maximum amount of weekly temporary total disability benefits change year to year and rise based on cost of living adjustments as enacted by The New Jersey State Legislature. Payments of temporary total disability benefits will continue for the injured worker until one of two events occur. Benefits will cease at the time that the injured worker is medically cleared to return to work, or has recovered to the point that he or she would no longer benefit from medical treatment. Attorneys often refer to this standard as Maximum Medical Improvement (MMI). When one of these two events occurs, temporary total workers’ compensation benefits will cease, and the employee will no longer receive 70% of the gross weekly wage.

However the payment of temporary total disability benefits as it pertains to public safety officers in the state of New Jersey is different. Most public safety officers that are injured on the job, the injury is “documentable” as occurring on the job, and the injury is not a reoccurring pre-existing injury, will receive Sick Leave Injury benefits. Sick Leave Injury benefits are more commonly referred to as SLI benefits. SLI benefits entitle the injured public safety officer to receive full pay for a period of one year from the date of injury, or until the individual has reached maximum medical improvement and has returned to employment, whichever occurs first. Unfortunately, SLI benefits do not include overtime wages that would have been earned but for the injury. Furthermore, it is very important to understand that if the injured public safety officer cannot return to work due to the severity of the injury within one year from the date of the accident, SLI benefits will cease and convert to temporary total disability benefits under the New Jersey Workers Compensation Act.  The particular legal nuances that pertain to SLI benefits will be discussed in more detail in a later post. 

In our next entry we will talk about the medical benefits injured public safety officers are entitled to receive under the New Jersey Workers Compensation Act.

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This will be the first entry of many regarding the topic of workers’ compensation in New Jersey. This topic, perhaps more than any other is of particular import to the public safety officer. This is due to the inherent dangers and physicality of police, fire and corrections work. If you are a public safety officer and reading this blog entry, the odds are favorable that you are presently injured and in the workers compensation system; were previously injured at work and went through the workers’ compensation system; or you will be injured in future employment, and will have to go through the workers compensation system. In any event, pay close attention to this series of blog entries as they will answer many of the questions you may have regarding workers’ compensation, and give you an overview of how the system works. 

New Jersey has been one of the leading states in enacting legislation to protect the injured worker. The New Jersey Workers’ Compensation Act, or a version thereof, has been in effect in The State of New Jersey since the year 1911. Prior to the enactment of The New Jersey Workers’ Compensation Act, workers who were injured during the time of their employment were forced to initiate litigation against their employer to receive benefits and compensation for the injuries that they suffered in the workplace. The legislature found this particular system to be ineffective due to the fact that litigation of the case would take several years to work its way through the court system, often leaving the injured worker without benefits, compensation, or a means to support his/her family during this difficult period in their lives. Today, filing and settling a workers’ compensation case takes time, however it is normally as lengthy a procedure as litigating a case in the Superior Court of New Jersey.

1979 was a breakthrough year for a New Jersey Workers’ Compensation Act. Legislative reforms were initiated in 1979 that revamped the entire workers’ compensation system, created a chart of injuries that is currently in use in one form or another, and placed an emphasis on insuring workers with injuries received benefits that were commensurate with the severity of the injuries. Furthermore, the new system initiated in 1979 discouraged workers with minor injuries from receiving disproportionate benefits based upon only their subjective complaints. In the end, the 1979 legislative reforms have led to the workers’ compensation system that is presently in use. Undoubtedly, it is not a perfect system. However it does provide a fair means of compensation for the injured worker. It can best be described as a functional system that enables the injured worker to receive benefits that will hopefully sustain the worker and their family during this difficult period in their lives. 

In our next entry, we will give you an overview of the three types of benefits available under the New Jersey Workers Compensation Act.

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