What should you do if you are hurt at work?
If you are at work and you twist your knee getting up from your workstation or you feel something pop in your back while picking up a box, what should you do? If your injury doesn’t require a trip to the emergency room, the first thing you should do is report your injury to your immediate supervisor or to human resources. This is so even if you don’t think you need treatment. It’s human nature to not want to say anything because of embarrassment or guilt especially if you feel it’s your own fault that you got hurt. However, it is important to remember that fault (lawyers call it liability) is not an issue if you get hurt at work, except in very narrow circumstances like if you were impaired due to alcohol or drug use or you were committing a crime when you got hurt. If you are injured at work, your employer is responsible to provide and pay for your medical care. There are no deductibles or co-pays. Your employer also must pay you if you cannot work because of your injury.
When you report your injury, your employer will likely ask you questions about how you were hurt and they will require you to fill out a required form called “First Report of Injury or Illness.” Your employer has a legal obligation to provide medical care at no cost if you request it. If you don’t require an ambulance, your employer will likely send you to a local immediate care clinic or occupational health facility. Your employer is required by law to “post and maintain notices naming the company insuring its compensation liability ‘in a conspicuous place or places in and about the employer’s place of business’” (Form 16 NJ A). If your employer refuses to send you to a workers’ compensation walk-in clinic or doctor, you can call the insurance company directly to report the claim and request treatment.
If your employer and/or their insurance company refuse to send you for treatment you have the right to file a Motion with the Workers’ Compensation Court to obtain an order requiring your employer to provide you with causally related medical care. The Court can also order your employer to pay temporary benefits to you if you are unable to work while you are receiving medical treatment.
Because your employer is mandated by law to provide you medical care if you are hurt at work, the law gives your employer the right to select the doctors and medical providers who treat you. This is called the right to control treatment. It can be frustrating not seeing your own doctor or a doctor of your own choosing. Often a workers’ compensation doctor may not seem as attentive or as compassionate as your own doctor. And while this may sometimes be true, your employer’s right to control your medical treatment can also be a great benefit to you. This is so because your employer is also bound by the treatment recommendations of their own doctor. Your employer cannot “doctor shop” if it does not like the opinion of your treating doctor. If your employer refuses to authorize the treatment recommendations of its own doctor you have the right to go to Court and request a Judge to order your employer to provide the recommended treatment or testing.
As you near the end of your treatment the insurance company for your employer might schedule you for something called an FCE which stands for “Functional Capacity Evaluation.” If this is explained to you by your doctor at all, the doctor will tell you that he has ordered the FCE to determine your ability to return to work. And while this may be true, the FCE is a device used by the insurance company to terminate your treatment so they can send you back to work. When the insurance company doctor determines that you no longer need treatment and you are able return to work, their obligation to provide you treatment and pay temporary benefits to you ends. Therefore, if you are scheduled for an FCE you can be certain that the insurance company is looking to terminate your benefits. Depending on the severity of your injury, based upon the outcome of the FCE, your doctor may place permanent restrictions on you such as no lifting greater than 25lbs or no overhead lifting. Those permanent restrictions can be used to help establish the extent of your permanent disability.
When the workers’ compensation doctor decides that you are done treating, the doctor will determine that you have reached Maximal or Maximum Medical Improvement (“MMI”). This is another pseudo medical term created by the insurance companies to enhance their ability to terminate medical treatment and temporary benefits. The workers’ compensation statute requires your employer to provide “curative” treatment. Therefore, if no improvement is expected, your employer is no longer obligated to provide treatment.
The workers’ compensation law gives you the right to challenge the insurance company doctor’s decision that you have reached MMI. You have the right to be examined by your own medical expert. If your doctor concludes that more treatment is warranted and that treatment can improve your injury, a motion can be filed on your behalf in Workers’ Compensation Court. A Judge will hear your case and determine whether the insurance company should be ordered to provide you additional medical care.
What happens when you are done treating?
Following your discharge from treatment your employer is also obligated to compensate you for your residual permanent disability. All of your treating records will be obtained and you will be scheduled for an evaluation by your doctor and by the insurance company doctor. The insurance company doctor is not one of the doctors who treated you. This doctor is an expert retained by the insurance company to provide an opinion regarding the extent of your permanent disability.
The examining doctors should be specialists for the type of injuries you suffered. So, for example, if you injured your neck or lower back, you should be evaluated by an orthopedist. If you suffered a structural eye injury and/or you have permanent vision issues, you should be evaluated by an ophthalmologist.
Each doctor will prepare a report summarizing your treatment, explaining the doctor’s physical findings, listing his or her diagnoses, and providing an estimate of disability by percentage. These disability estimates are used to determine the extent of your disability and the amount of compensation you will receive. Your doctor’s estimate will typically be on the high side and the insurance company’s doctor’s estimate will be much lower or even zero. The actual percentage of disability you receive typically is between both doctors’ estimates although a Judge is not bound by them. Many clients become dismayed when the insurance company doctor concludes that they have no permanent disability resulting from their work injury. This often occurs despite the fact they have permanent pain, physical limitations, and their ability to work and perform activities of daily living is greatly reduced.
In New Jersey, a lawsuit is not filed to get your workers’ compensation case into Court. Instead, a Claim Petition is filed with the Division of Workers’ Compensation. The Claim Petition is a form document which is completed online and submitted electronically to the Division of Workers’ Compensation. The Claim Petition includes information about you, your employer, and your employer’s workers’ compensation insurance company. Also included is information about how you got hurt, your injuries, and your wages. You, the injured worker are the Petitioner and your employer is the Respondent.
While your case is pending, the Court will periodically schedule Pre Trial Conferences to assess the status of such things as your ongoing medical care or each sides’ permanency evaluations. A Pre Trial Conference also affords the opportunity for your attorney and your employer’s attorney the opportunity to address and resolve issues without the necessity of filing a formal motion.
Upon completion of treatment and obtaining permanency evaluations the Petitioner and Respondent exchange their permanency evaluation reports. Although not required, the Petitioner will submit a settlement demand to the Respondent.
Resolving your case
The permanency evaluation reports prepared by the respective medical experts will include a summary of your medical history and medical treatment, the doctor’s physical examination and findings, your diagnoses and the doctors’ estimate of your permanent disability in the form of a percentage. Your doctor’s percentage will be higher than your actual disability or the settlement value of your claim. The insurance company doctor will give an undervalued percentage or even find that you have zero disability. This can happen even if your treating doctor confirms that you have permanent restrictions from your work injury. At this stage of the case, your attorney should meet with you to review both sides’ expert reports and formulate a settlement demand. There is no requirement that a settlement demand be made in writing, however, an email or telephone call to the insurance company attorney is often inadequate. A written settlement demand setting forth the objective medical findings of your disability and your diagnoses coupled with the specific disability percentage and dollar amount of compensation being sought is a much more effective tool to be used on your behalf. As with your own medical expert’s report, the demand should be greater than the actual amount you are seeking to allow room for negotiating, which is standard practice between your attorney and the insurance company attorney.
The insurance company attorney will typically ordinarily respond with an offer which your attorney is obligated to communicate to you and review with you, answering all of your questions and concerns. A decision should be made at this juncture whether to accept the insurance company’s settlement offer or to transmit a counter demand. If, upon the advice of your attorney you agree to accept the insurance company’s offer or counteroffer, your case will proceed to settlement.
If you reject the insurance company’s settlement offer or no offer is made at all, the next step is to conference your case with the Workers’ Compensation Judge assigned to your case and the insurance company attorney. A number of Workers’ Compensation Courts in New Jersey continue to conduct conferences by video conference or telephone.
The Judge assigned to your case will hear from both attorneys as to what they think the extent of your disability is (the value of your case) and present objective medical evidence which supports their position. Your attorney should highlight objective findings in diagnostic testing such as MRIs, CT scans, and EMG testing. Your attorney should also detail your course of treatment including physical therapy, injections, surgical procedures, and any permanent physical restrictions placed on you by your treating doctors. Your attorney should also emphasize your inability to return to your physical level of work prior to the injury.
After hearing from both attorneys and reviewing the pertinent medical records, the Judge will make a settlement recommendation. Neither side is bound by the Judge’s settlement recommendation however, following a comprehensive review, the Judge’s opinion as to the value of your case will be fair and generally quite accurate. At this point, your attorney should review the settlement offer with you, preferably in person. If the Judge’s settlement recommendation is accepted by both sides, the Judge will schedule a hearing to place the terms of the settlement on the record and approve the settlement which is described informally as “putting through the settlement.” In the courts where in-person settlements are heard, you will be sworn in and asked to testify about your present complaints, limitations at work and your activities of daily living, and any medications and home remedies you are using. The insurance company attorney is also permitted to ask you questions. Although this is done in the form of cross-examination, the questions you will likely be asked will be to provide more details about your complaints and limitations. The purpose of the hearing is for the Judge to approve a settlement already agreed upon by the parties, so the purpose of cross-examination by the insurance company attorney is not to dispute or discredit your testimony. At the conclusion of the settlement hearing the Judge will sign an order which is called an Order Approving Settlement. By law, the insurance company must make payment to you within 60 days of the date the Order Approving Settlement is signed by the Judge.
Some workers’ compensation courts in New Jersey conduct the settlement hearing by Zoom meeting or Microsoft Teams meeting. Still other workers’ compensation courts in New Jersey do not require you or the attorneys to come to court at all. Your attorney will prepare an affidavit on your behalf detailing all the information you would have otherwise provided if you testified in court before the Judge. Your affidavit and the settlement order are submitted to the Judge by email and the Judge places the settlement on the record and signs the settlement order.
If your case does not settle, the Judge will schedule a trial date. All workers’ compensation courts in New Jersey hold trials in person, although you are permitted to testify via video if allowed by the Judge. The trial is called a “bench trial” which means that there is no jury. Your case is heard by the workers’ compensation Judge who will decide if you are entitled to compensation and if so, how much. Trials in workers’ compensation court are bifurcated which means testimony is taken in separate court sessions. You will testify on the first day of trial and the next witness will testify on the next court date. Court dates are scheduled in three week intervals. Court dates can be scheduled closer than three weeks apart and multiple witnesses can testify on the same day, but that is up to the Judge After all lay (non-expert) witnesses testify, doctors and any other expert witnesses will be scheduled to testify. Again, this is done in three week intervals so a trial can take several months, if not longer to complete. At the conclusion of the trial, the Judge will enter a judgment setting your percentage of permanent disability. The Judge can also dismiss your case if the Judge makes a finding that you have no permanent disability resulting from your work injury. Both sides have 45 days to appeal the Judge’s decision to the New Jersey Appellate Division.
What if you have a prior injury?
Many people are concerned that a prior injury will prevent or limit their ability to get a permanency award. The workers’ compensation system in New Jersey allows for this and is actually designed to encourage employers to hire workers with prior injuries and disabilities. Although your employer is entitled to seek a credit for your prior injury which is measured by something called your prior functional loss, you are entitled to receive compensation for your increased disability.
What happens after you receive your settlement check?
You have the right to reopen your case for up to two years after the date of your settlement check. If you receive multiple checks over a period of time, the two years begins running from the date of the last check. You can seek additional medical care and an increase in your permanent disability when you reopen your case. Your case can be formally reopened by filing an Application for Review or Modification of Formal Award (referred to as a “Reopener Claim Petition”) Filing the Reopener Claim Petition tolls or stops the two year time period. If you do not receive additional benefits or a Reopener Claim Petition is not filed within the two year period, you will be legally barred from seeking additional benefits for that particular injury.
Keys for a Successful Workers’ Compensation Case
- A comprehensive meeting between you and your attorney at the beginning of your case.
- Periodic updates regarding the status of your case given by your attorney to you.
- Scheduling by your attorney of telephone conferences, video conferences or office conferences upon your request.
- Meeting between you and your attorney when your case is ready, to formulate a settlement demand.
- Review of all settlement offers by your attorney with you and confirmation by you of any counter demands.
- Meeting between you and your attorney to review settlement terms.
- If testimony is scheduled, a meeting with you and your attorney before the court date (not just the day before) to prepare your testimony and to review your file for completeness and trial readiness.