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Sunday, February 26, 2017

The limits on a total permanent disability award

The New Jersey Supreme Court recently heard oral argument concerning the mathematical limits of a workers’ compensation total disability case. At the heart of the case is the issue of whether an injured worker could have an increase in a pre-existing permanent partial disability [PPT] claim, that existed prior to the last compensable injury which was to another part of the body. The last compensable claim rendered the worker totally and permanently disabled.

Medical benefits comprise a significant portion of the benefits provided to an injured worker who has suffered an occupational injury or traumatically caused disability. Not allowing the petitioner to increase the award of a pre-existing compensable condition that results in the termination of the medical benefit flowing from that specific injury. Even if the need for medical treatment for the prior claim existed in the time-frame for filing an application to reopen or modify the prior award, the medical benefit would be extinguished should the Application to Review or Modify the Claim [Reopener] be barred. To eliminate benefits in such a fashion the injured worker's attorney argued would inappropriately shift the cost of medical care in most cases to Medicare or Medicaid contrary to the Social Security Act and regulations governing the Centers for Medicare and Medicaid Services [CMS] and contrary to the Medicare Secondary Payer Act [MSP].

In the case argued, the employer was responsible for providing benefits under the NJ Workers’ Compensation Act for both the original accident, involving back injury and a subsequent injury, involving the neck and shoulder. The neck and shoulder injury rendered the injured worker totally and permanently disabled and involved Second Injury Fund [SIF] contribution. The employer argued that the injured worker should not be permitted to file a Reopener.  Consequently, the injured worker would be denied the ability to seek authorized medical care as well as a small increase in PPT.

The SIF, which contributes to total permanent disability [TPD] awards, when there are pre-existing medical conditions that combine with the last compensable injury to render the injured worker PPT.  Frank A. Petro, Esq., attorney for the injured worker, Respondent, argued that the pre-existing partial disability award should be increased thereby extending the statute of limitation for medical benefits for the pro injury as well as increasing PPT.  There was no stipulation or provision in the order addressing the issue of continued medical treatment.

Mr. Petro did not argue for concurrent PPT and PTD compensation payments,  specifically payments past the date of totality. The parties did agree that the NJ workers’ Compensation Act did not specifically address the issue of the payment of concurrent and/or consecutive payments.

Click here to view a video recording of the oral argument. (Courtesy of the Rutgers School of Law - Newark))

Date: 2016-11-29 01:01:17
Description: Under the circumstances presented, did the Division of Workers Compensation err in awarding the petitioner an increase in disability for one of his two conditions?
Doc ID A-60-15
Appeal taken from an unreported opinion NJ App Div found at 2015WL7079047

Counsel                      Type
Chery B. Kline           Respondent

Frank A. Petro            Respondent