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Are You a Misclassified Employee?

On August 6 of this year, the governor signed off on the new Wage Theft Law. While this law doesn’t mention worker’s compensation directly, it does draw attention to the fact that employers in New Jersey regularly misclassify workers.

The Department of Labor estimates that over 12,000 employees have been misclassified across the state, and that up to 30% of New Jersey employers engage in some form of employee misclassification.

They do this by claiming employees as independent contractors. 

In addition to helping them skirt wage and overtime laws, misclassification makes it easier for employers to skip out on paying worker’s compensation insurance for those employees. 

And while New Jersey does have an Office of Special Compensation Funds to help employees who weren’t covered by employers, you may find yourself in the position of having to prove you were misclassified if you wait until you need that money. It may be better to address issues of misclassification now, closing both worker’s compensation loopholes and loopholes which impact your pay.

To discover if you’ve been misclassified, you can use New Jersey’s ABC test.

Under the ABC test, you must meet three criteria to be considered an independent contractor.

  1. You must be free from the control and direction of the hiring entity. The entity might be able to express preferences from a list of service offerings, but independent contractors work when, where, and how they want. They aren’t penalized if they don’t show up according to an employer’s schedule, nor are they
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Employers Commit Workman’s Comp Fraud Too

Often, when people start talking about worker’s comp fraud all the focus is on employees who fake injuries, who fail to disclose pre-existing conditions, or who exaggerate the severity of injuries so they can live off workers comp funds without going back to work. 

But employers commit fraud as well. And it’s important to realize that filing a claim against your employer can be to your benefit when genuine fraud exists. 

They’ve failed to obtain insurance at all.

This form of fraud exposes your employer to criminal penalties. According to New Jersey Law, they can be sent to jail for up to 18 months and assessed a $10,000 fine.

In the meantime, a fund exists to pay benefits if you are a victim of this kind of fraud, through the Office of Special Compensation Funds.

They’ve classified you incorrectly.  

In New Jersey employers must obtain worker’s compensation insurance for part time and short-term employees. They don’t have to obtain it for contractors, though, which inspires many employers to misclassify their employees.

But if your employer is your sole source of income, takes up 40 hours of your time, and controls how you do your work then you are not a contractor and should not be working off a 1099. Get an attorney’s help so you can compel the employer to list you as a full-time, W2 employee. If you’ve already been injured, an attorney can also help show why their policy should be covering you.

They make false or misleading

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What Happens When a 3rd Party Injures You on the Job in NJ?

Third parties are involved in New Jersey worker’s compensation cases more often than you might think. In fact, one of the jobs your New Jersey worker’s compensation lawyer should be doing is identifying any other third parties who might be involved.

For example, if you were driving for work and got into an accident than the third party would be the other driver. If you were using equipment or products on the job and these items injured you because they were defective, the manufacturer of those products is a responsible third party. If a subcontractor failed to follow a safety process and injured you, then the subcontractor becomes the third party. And if you were injured on someone else’s property while working a job for your employer, then the property owner becomes a responsible third party.

This is actually good news, though it can make your case a little more complicated.

You have the right to sue the third party and you never have to choose.

First, let’s talk about what worker’s compensation does. 

It is meant to do three things:

  1. Get you the medical care you need.
  2. Provide limited financial support for you and your family members while you’re injured.
  3. Provide very, very limited compensation for your injuries.

It also protects your employer from lawsuits. You usually can’t sue your employer over workplace injuries, even if your employer was grossly negligent and directly contributed to that injury in some way.

But you always have the right to sue the …

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What to Do If Worker’s Compensation Denies A Medical Procedure

One of the most frustrating things about dealing with worker’s compensation is dealing with the insurer itself. It’s not uncommon for your doctor to recommend a treatment, only to have the insurance company deny coverage for it.

It seems intensely unfair. How can an insurance adjuster, who never went to medical school, look at you and your doctor and tell you that your procedure isn’t “medically necessary?

Or, how can they say the procedure that’s been proposed has nothing to do with the injury you took on the job, when it’s so clear and obvious that it has everything to do with it?

See also: Repetitive Stress Injuries and NJ Worker’s Comp.

The problem is, insurers stay in business by looking for every reason to deny coverage they can find. They aren’t really concerned with straightforward common sense or fairness. They’re concerned with making a case that allows them to avoid payment. 

They may agree to cover a lesser or less effective treatment, or they may deny coverage altogether. Fortunately you have some recourse. You can appeal this decision, and there are ways for you to get treatment in the meantime.

Step 1 – Gather Documentation

Go back to your doctor and have him or her provide full documentation as to why he or she believes this procedure is medically necessary. You’ll need this to refute the insurer’s claim.

Step 2 – Bring the Matter to Your Lawyer

Your lawyer can make a claim on your …

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3 Mistakes That Can Get You Accused of Workman’s Comp Fraud

Workman’s compensation fraud is serious. It is a crime, and it carries steep penalties.

Many people immediately think of workers who fake injuries when they think of workman’s compensation fraud. Or workers who claim disabilities well after healing has taken place.

And this form of fraud does, in fact, happen. So does a form of fraud perpetrated by employers, who fail to obtain or maintain adequate workman’s comp coverage. But there are simple mistakes that good, honest workers make when they are dealing with workman’s comp that can get them accused of fraud, even if all their actions were innocent.

#1) Failing to report changes in employment status.

Misrepresenting your job status while collecting disability benefits” is one of the first definitions of workman’s comp fraud in the statute as written. Any change in work status must be reported both to your employer and to the insurance company.

This could mean taking on a new position with your old employer, doing some light duty “gig” work while you’re recovering, or taking on a new job. Do not assume either party knows you’ve made a change. 

You may be reluctant to do so, fearing the loss of benefits which are keeping you afloat. The new job or job status change may not cover all your bills. Just remember some coverage may still be available to you after you start any form of work again. You won’t be afloat if you get charged with fraud, either, so …

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What Happens After You Reject a NJ Workman’s Comp Offer?

As in any case where insurance companies are involved, you will typically receive some sort of settlement offer in your case. And at times, the offer won’t be a very good one.

Fortunately, you can reject the offer. And the case isn’t over when you do.

See also: 8 Workman’s Comp Mistakes to Avoid.

Step #1: Your NJ Workman’s Comp Attorney Renegotiates the Settlement

The next step requires an attorney if you don’t have one already. Your attorney will sit down with the insurance company and a Judge of Compensation. Together, everyone will review the settlement offer and discuss the problems that caused you to reject it.

Usually the insurance company will issue a new offer.

See also: Delay in Your Workman’s Compensation Claim: What You Can Do

Step #2: Evaluating the New Offer

If, after discussing the new offer with your attorney, you determine that it’s fair and workable, you can accept it with no further modification. If not, you can reject it again.

If you do this, the matter will proceed to trial.

See also: Top Tips for Documenting Your Injury in a NJ Workplace.

Step #3: Trial

The matter will also probably proceed to trial if the insurance company digs in its heels and refuses to modify the offer at all.

This won’t be a jury trial. The same Judge of Compensation will hear the whole thing. But this time, we’ll be able to bring in medical experts who can testify to the severity of …

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Repetitive Stress Injuries and NJ Workman’s Comp

Repetitive stress injuries (RSI) have been making headlines lately. While carpel tunnel is the most well-known of this family of injuries, there are many others.

These musculoskeletal disorders can also strike knees, shoulders, the rotator cuff, the lower back, and the elbows. And if your work is causing these injuries, they’re covered by workman’s comp.

Determining Whether RSIs are Work Injuries

To close off avenues whereby your employer may challenge the work-based nature of the injury, it’s important to cover your bases.

Your first step will be to go see your own doctor. Bring a job description. If the injury is aggravated every time you work, that’s a good clue that it’s work related, but a doctor can verify it.

Note that you are not trying to establish that no other activity exacerbates the injury. If you’re having problems at work you may be having problems at home, too. What you’re trying to establish is that your activities on the job have made a “material contribution” to causing the injury. That means they’re a major source of the problem.

See also: 8 Workman’s Comp Mistakes to Avoid.

Next Steps

Once you’ve established you have a work-related RSI you need to make a report to your employer just as you would if you’d taken an acute injury on the job. Bringing the problem to your employer’s condition is the start of every successful workman’s comp claim.

You’ll fill out an accident report for an RSI too, just …

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8 Workman’s Comp Mistakes to Avoid

Workman’s compensation isn’t straightforward. Like any legal proceeding, there are a lot of steps to get through.

And that means a lot of places you can derail your own claim if you’re not careful.

#1) Failing to report to your employer.

Creating an incident report and giving it to your supervisor and HR is going to be your first step unless you’re unconscious and unable to move after your injury, or are too hurt in other ways.

Reporting starts the claim. And while this might worry you, the truth is the incident report is the first piece of evidence the accident took place on the job. The last thing you want is for your employer to try to make a case that the injury took place while you were at home.

Remember, “fault” doesn’t enter into a workman’s comp claim. What matters is that you were injured while working, period.

By the way, you don’t have to rely on your employer to report the accident to the insurance carrier. You can do that yourself.

See also: Can My Employer Fire Me for Trying to Claim Workman’s Comp?

#2) Failing to hire a workman’s compensation lawyer, and quick.

You pretty much need a workman’s compensation lawyer as soon as you file the claim, unless the injury was minor. If it’s a long-term injury likely to keep you out of work for days at a time you definitely want someone in your corner.

The insurance company is likely to try to dispute …

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Does New Jersey Workman’s Comp Cover Medical Marijuana?

If you are one of the 22,000 people in New Jersey who has been authorized to use medical marijuana to manage your pain, then this issue is bound to cause you some worry when you’re in the middle of a workman’s comp claim.

As it happens, this is an issue that’s been getting some resolution recently.

A Recent Case

In the 2018 case McNeary v. Freehold Township the Honorable Judge Lionel Simon ordered Mr. McNeary’s workman’s comp insurance company to cover the cost of his medical marijuana use so long as a doctor was willing to continue to provide evidence of his need for it.

In his ruling, Simon said that it was clear to him that the legislative intent of federal drug laws is to “curtail the use and distribution of illicit narcotics for the purposes of the overall general health.” He said he did not believe the New Jersey Medical Marijuana Act was in conflict with that goal, and was far more concerned about the possibility that Mr. McNeary would have to switch to opioids to manage his pain if he was denied reimbursement for the marijuana.

He pointed out it would be cheaper for the insurance company to pay that claim, too, though in this case the insurance company’s concern seemed to be less about the amount paid and more about whether they’d accrue liability in the face of Federal law which continues to criminalize marijuana use.

See also: Top Tips for Documenting Your NJ Injury in

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Can Temp Workers File Workman’s Comp Claims in New Jersey?

There are over 127,000 temporary workers in the state of New Jersey. And if you’re one of them, you may be surprised to learn you absolutely are entitled to workman’s comp if you get injured on an assignment.

There’s a reason not many people know. For one thing, some publications erroneously report temp workers aren’t entitled to workman’s comp. What they might mean is the third-party employer who owns the job site isn’t responsible for it. And temp employees don’t often get it, in part because employers are all-too-willing to lie about it.

Knowing your rights is the first step to protecting yourself.

You probably need workman’s comp even more than full-time employees do.

Workplace conditions can be more dangerous for temporary workers than for full-time employees. There are three reasons for this.

First, light industrial jobs dominate the industry, which means we’re already talking about warehouse and assembly jobs where injuries are more likely to occur. Of course, even offices can be unsafe workspaces under the right conditions.

Second, many staffing agency clients know it’s very easy to replace anyone who complains, and so try to save money by cutting corners on safety. For example, one third-party employer required temps to enter a freezer without insulated suits.

Finally, third-party employers don’t usually invest in proper training. And some try to make temp workers do work outside the scope of both their assignment and their expertise, such as working a forklift.

See also: What to Do When a Workplace

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The Law Office of Albert J. Talone is a NJ Workers Compensation Law Firm committed to meeting the needs of every client. For more information - contact us today.

The Law Office Of Albert J. Talone
The Law Office Of Albert J. Talone is committed to providing for those with Workers Compensation cases throughout New Jersey.
302 N Washington Ave #101
Moorestown
New Jersey
08057
United States

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