Recently two petitions went before the Supreme Court, both covering states that did not want to cover medical cannabis in workers compensation claims.
States tend to make the argument that the request to be reimbursed for medical marijuana violates federal law.
Here in New Jersey, courts have already ruled that workers compensation should cover medical cannabis. The case was settled in Hagar vs. MSK Construction. The cases the Supreme Court passed on came out of Minnesota and New Mexico.
Prior to declining to hear the case, the Supreme Court consulted with the Department of Justice. The DoJ urged the Supreme Court to stay out of it.
What does it mean that the Supreme Court won’t hear the cases?
It doesn’t mean anything for your New Jersey workers compensation benefits if medical marijuana is part of your treatment plan.
If the Supreme Court had heard the case it might have secured cannabis as a covered right for all 50 states, but in this case it also shuts down the possibility that New Jersey might have the court’s backing to stop covering the treatment.
NJ A1708, a bill that would absolutely require New Jersey workers compensation and personal injury protection (PIP) to cover medical marijuana remains in committee, where it’s been since 10/26/2020. It is unclear whether it will pass any time soon. Nevertheless, the state court ruling is likely to stand as precedent if companies challenge your right to be reimbursed for the use of medical marijuana in the …Read More
While few workers compensation cases go to court, you will at some point have to make a statement. While you may not, strictly speaking, have to “testify,” you may have to make statements in a deposition or answer questions at a settlement hearing. A few employees really will have to testify in the rare event that the case does go to trial.
The thing to realize is that telling your story is important. It’s an opportunity to help everyone understand how the accident has impacted your life.
A good workers compensation attorney takes the time to prepare you for your testimony. We’ll coach you on how to answer questions, on the most likely questions to expect, and on how to answer as effectively as possible.
Most questions are quite routine. You’ll be asked about your job duties and the physical requirements of your job. You’ll be asked about the facts of the injury: how you sustained it, and what your symptoms were. You’ll be asked about how and whether you reported your injuries.
You’ll also be asked about medical treatment received, and whether you followed all of your doctor’s orders. Work restrictions are another common source of questions, as are whether or not your employer complied with any light duty restrictions on record.
You’ll also be asked about the limitations you face as a result of the injury, and about the ways that your injury has changed your life. While there are no pain and suffering awards in …Read More
It’s tragic but true: many work injuries end in amputation. A prosthetic can help restore quality of life and even the ability to continue working, but they are costly. A low-end prosthetic can cost as much as $5000, whereas a high-end prosthetic can cost up to $70,000. A high end prosthetic such as a myoelectric prosthesis offers movable fingers and a considerable return to functionality.
New Jersey Law pays out an amount of loss of function equal to a number of weeks according to the workers compensation chart. If you lose 25% of your hand or foot function you will be compensated for three weeks of work in addition to what you’re paid while you’re out of work, and in addition to your medical bills.
The number of weeks varies by the amount of function loss. If you lose 50% of your hand function then you are paid for 150 weeks, an amount which can add up to over $43,000.
Theoretically the workers compensation company should pay for prosthetics too. Unfortunately they tend to want to pay for the cheapest and least functional prosthetic they can get away with. For example, they might want to fit you for a claw that won’t actually give you any real functionality. You might need to use the loss of functionality award to pay for that amount yourself. Workers compensation insurance will often try to claim that a better prosthetic is not “medically necessary.”
If you already had a prosthetic and the accident damages …Read More
PTSD is back in New Jersey news after a recent proposal to create a temporary task force to study and provide recommendations of the identification and treatment of pandemic-related PTSD, looking for ways to identify new, alternative, and innovative methods to diagnose and treat the disease.
New Jersey is one of the few states that allows workers compensation payments for PTSD. Yet you must be able to prove that your PTSD stems directly from a workplace incident.
New Jersey has recognized work-related stress since 1992, though the case was a depression case rather than a PTSD case. Still, it offers groundwork and precedence to have work related mental health injuries recognized.
These could include violence at work, lingering trauma from another workplace injury, a car accident, or a lasting pattern of abuse or stress from customers or managers. However, workplace stress and abuse can be extremely difficult to prove.
PTSD for Workplace Stress
To prove PTSD for workplace stress you must be able to show:
- The conditions were stressful, which includes the gradual accumulation of job-related mental stress.
- The worker reacted to them as stressful.
- Those stresses were peculiar to that workplace. For example, police officers, EMTs, and firefighters have an excellent claim that workplace stress is peculiar to their workplaces. So, too, would front line healthcare workers who worked through the pandemic.
- A medical professional has rendered an opinion on the psychic disability.
- The workplace exposure must have caused the PTSD disability.
If you can prove all …Read More
Chronic pain and chronic fatigue are growing endemic within the working population. Fibromyalgia, which has no cure, is one such condition. It has no cure, and it can put an end to anyone’s ability to work full-time.
While you may think it is difficult to prove that fibromyalgia would be a work-related injury, the truth is that up to 40% of sufferers end up with fibromyalgia as the result of a “triggering event.”
To claim workers compensation for this condition, you will need to prove both that you have fibromyalgia, and that the fibromyalgia was caused by workplace conditions.
Proving You Have Fibromyalgia
Doctors are getting better at diagnosing fibromyalgia. There are specific symptoms they can look for. In addition to chronic fatigue, pain, and cognitive impairments, they can identify specific tender points that hurt when pressure is applied. Doctors can also ask about a group of symptoms and the number of times each week you suffer from those symptoms. There are no specific diagnostic tests for fibromyalgia, though there may be soon. Last year, researchers used machine learning to distinguish the brain scans of those with fibromyalgia from those without, and did so with 93% accuracy.
You will certainly need a diagnosis to prove that you have fibromyalgia. It is an “invisible illness,” which can make it difficult to prove. In addition, workplace doctors will be incentivized to tell you that the disease is “all in your head.”
Proving Your Fibromyalgia is Work-Related
One way …Read More
Yet if you were injured on the job in New Jersey such that you require an ambulance, you do not have to worry. An ambulance is a medical expense, and ambulances are part of the treatment costs. Of course, most employers try to discourage you from calling an ambulance and want you to go to your own doctor instead, but if you need one you should be able to get one without fear.
New Jersey law allows them to dictate what doctor you can see, but they can’t keep you from going to the ER fi that is where you need to go. Of course, unless you are unconscious you are the one making the call in many cases, but it is ultimately your call to make.
Note that you will probably see a bill before the workers compensation company does. When that happens, you just provide the ambulance company with your workers compensation claim number, as well as the name and number of the adjuster handling your case. You then send the bill on to the adjuster.
Once you have done this, the medical provider may not contact you about the bill again.
Keep in mind that because the employer usually wants you to go to your own doctor the adjuster may try to claim the ambulance …Read More
On January 10, 2022, Governor Phil Murphy signed SB771 into law. This bill added new language to the New Jersey Revised Statutes Title 34: Labor and Workers Compensation which specifically covered employer-providing parking and how it relates to workers compensation claims.
Essentially, if an employer provides parking then as soon as the employee arrives on the lot prior to arriving at work they’re at work, even if the parking lot is some distance from the office. So long as the employee travels directly from the parking area to the place of employment upon arrival.
By the same token, once the employee leaves their work site they’re still covered by compensation on the walk from that site to employer-provided parking, so long as they proceed directly to the parking area.
This is a reversal of the previous “coming and going” rule.
This law arose in response to a case, Hersh v. County of Morris, where an employee was struck by a vehicle running a red light while traveling from employer-provided parking to her work site.
The law also states the employee is covered if the employer only designates a parking area, especially if that parking area is not adjacent to the employee’s place of business. It also no longer matters if the employee’s path takes them through public areas.
As is to be expected, the business community is not happy about the change, and you can expect pushback if you try to file a parking lot claim.
There …Read More
One in four of New Jersey’s worker is an immigrant. That’s 1.4 million workers comprising a total o 29% of the labor force.
That’s plenty of people who are at risk for getting hurt on the job!
Many of these immigrants are also undocumented, even as they contribute to the local economy.
Fortunately, all New Jersey workers are eligible to receive workers compensation benefits. Immigration status does not matter and should not be a bar to recovery.
Will I be deported if I claim workers compensation benefits?
Some employers do threaten workers with deportation if they try to claim their benefits.
While it might not hurt to talk to an immigration lawyer as well as a workers compensation lawyer, the truth is employers may not retaliate against employees for claiming workers compensation.
If an employer tries to threaten you, you should tell your workers compensation lawyer right away.
I only work for one employer, but now they’re claiming I’m an independent contractor.
Employers do this a lot, especially to immigrants. If your employer is doing it to you, tell our office right away.
There are specific tests that New Jersey courts use to determine if a worker is an employee or a contractor.
Under New Jersey Law, if you perform a service and are paid, you are presumed to be an employee. If an employer wishes to prove otherwise, they must prove the following:
- You have been and will continue to be free from control or direction
Many people do not realize that there is more than one type of workers compensation settlement here in New Jersey. Choosing between these settlements will depend on many factors, including the severity of your injury and your needs after the accident.
It may also depend on whether or not the insurance company has any grounds to deny your claim, or to reduce it. For example, if the insurance company is attempting to claim that you had a pre-existing condition that complicated your claim then you’ll have to fight harder than someone who was in good health prior to their accident.
Type 1: Section 20
A Section 20 is a lump sum settlement that is most often used when the insurance company wants to deny your claim, or significantly reduce it. Once you accept this settlement your claim is done with.
In this settlement, there is a “genuine issue of dispute” and the insurance company is saying, “we don’t agree, but we’ll pay you to avoid arguing about it.”
When you file a Section 20 that’s it. You’re responsible for all future medical care. The money you take is the only money you’re going to get from the claim. You probably will be dismissed from your job and you may never reopen the claim.
You, the employer, and a judge must all agree that the Section 20 is appropriate before this form of settlement may be used.
Type 2: Section 22
In a Section 22 settlement, the employer keeps paying for …Read More
Worried about what it will cost to hire a workers compensation attorney?
Did you know you don’t even have to worry about coming up with a retainer or an hourly rate? Workers compensation attorneys work on contingency, which means they don’t even get paid until your case is brought to conclusion.
Here’s everything you need to know about what your lawyer gets paid, and how much.
Who pays the legal fees?
The employer is responsible for paying up to 60% of your attorney’s legal fees if you are forced to take your case into court. The judge also makes the determination as to the percentage of the claim that should be given to the attorney.
Typically the percentage is 20% of the entire workers compensation case award. So if your case is worth $100,000, then your lawyer gets paid $20,000, but only $8000 comes out of your settlement because the employer is expected to pay the rest. You walk away with $92,000.
If you are forced to use the courts to recover benefits that suddenly get off then the employer may further be responsible for the payment of a 20% fee on all back benefits.
Other Legal Costs
The lawyer pays for any costs associated with your settlement. This can include:
- Expert witness fees
- Filing fees
- Investigation costs
- Minor costs for copies, obtaining records, etc.
These are not included in attorneys fees, but are deducted from your settlement all the same.
These fees aren’t as large as you might fear. …Read More