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Tuesday, June 22, 2021

NJ Court Upholds Bar on Implementing Triennial Determination

Disability Benefits before age 62 are not entitled to a COLA (Cost of Linving) increase in benefits, a “triennial determination.” The Court reasoned that the 1980 NJ statute allowing for a “reverse offset,” one in which the employer takes the Social Security Disability Offset, also permits NJ law to pre-empt Federal law that mandates such a recalculation. 


A few remaining states utilize the “reverse offset”. However, it is a law that various Presidential Administrations have sought to eliminate to level the playing field and stop cost-shifting to the US taxpayers.



In this case of first impression in New Jersey, the court considered whether N.J.S.A. 34:15-95.5 requires a triennial redetermination of petitioners' combined awards of state workers' compensation total disability benefits and social security disability benefits (SSD) as is done under 42 U.S.C. § 424a.


Under both N.J.S.A. 34:15-95.5 and 42 U.S.C. § 424a, a petitioner is limited to the amount they can simultaneously collect from SSD and state workers' compensation benefits. If the combined monthly total benefits of SSD and state workers' compensation benefits exceeds eighty percent of the petitioner's pre-disability average current earnings (ACE), SSD is reduced. Under 42 U.S.C. § 424a, Social Security receives the benefit of the offset.


In 1980, New Jersey enacted a law authorizing the reduction of the workers' compensation award instead of SSD when determining the simultaneous collectability of benefits. Therefore, New Jersey is a reverse offset state, meaning that the employer, insurance carrier, or Second Injury Fund gets the benefit of the offset, not Social Security.


42 U.S.C. § 424a(f) requires a triennial redetermination of benefits. N.J.S.A. 34:15-95.5 does not. Petitioners contend our Legislature intended to adopt the federal triennial redetermination provision. However, the plain language of N.J.S.A. 34:15-95.5 does not include a redetermination of benefits. And the legislative history is similarly silent. See Sponsor's & Lab. Comm. Statement to A. 1206 1-17 (L.1980, c. 83). Moreover, 42 U.S.C. § 424a(d) explicitly states that a triennial redetermination is not applicable in reverse offset states.


Because the NJ Legislature did not include a cost-of-living increase in the statute, and the federal statute exempts reverse offset states from reviewing its benefits triennially, we affirm the order denying a redetermination of benefits and for the reimbursement of overpayment of benefits.


Wilhelm v. Ryder Logistic, et al., 2021 WL 2521144, Docket Bo, A-3770-18/A-3792-18/A-3797-18/A-3798-18, Decided June 21, 2021.


See also

Trump Administration Proposes Elimination of the Reverse Offset 4-4-19


Totally Injured Workers Maybe Getting an Increase in Benefits 9-5-2018


Gov. Chris Christie and NJ Workers' Compensation: Declining Approval  9-28-2014


NJ Beneficiaries Wait for Supplemental Increase in Workers’ Compensation Benefits 10-2-2007


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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" Thomson-Reuters