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Friday, April 1, 2016

NJ Supreme Court to Review An Increase of Partial Disability Award in Total Disability Claim

One of the basic tenants of workers' compensation is that awards maybe reviewed and modified where the medical status has changed.1 The NJ Supreme Court on March 14, 2016 granted Certification to review a favorable Appellate Court ruling that permitted a totally and permanently disabled injured worker to receive an increase of a prior (2006 injury) partial disability award, even though the worker had been declared to be totally and permanently disability from a subsequent (2008 injury) injury.

Mathematically, the modified award increases the money being paid for the prior injury and also increases the NJ Second Injury Fund's2  contribution to the subsequent award.

Since an Application to Review and Modify an Award could result in either an increase or decease in the disability award, it would appear not to be a disturbing factual result. It should be noted that NJ remains one of few states that still has a Second Injury Fund.

Catranbone v. Bally's Park Place, et al. , Docket No. A-3589-13T4, 2015 WL 6967487, Decided Nov. 12, 2016 (Unpublished Decision).

N.J.S.A. 34:15–27 provides as follows, in pertinent part:
An agreement for compensation may be modified at any time by a subsequent agreement. Upon the application of any party, a formal award, determination, judgment, or order approving settlement may be reviewed within two years from the date when the injured person last received a payment on the ground that the incapacity of the injured employee has subsequently increased.

N.J.S.A. 34:15–95 provides as follows, in pertinent part:
The sums collected under [N.J.S.A. 34:15–94] shall constitute a fund, to be known as the Second Injury Fund, out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of [N.J.S.A. 34:15–12(b) ] shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause[.]