Totally Injured Workers Maybe Getting an Increase in Benefits

The proposed Trump Administration 2019 Budget (p. 115) may allow NJ workers’ compensation beneficiaries to receive an increase in benefits. By eliminating the Social Security “reverse offset,” totally and permanently injured NJ workers will receive a triennial annual COLA increase.

“The Budget includes a re-proposal to eliminate reverse offsets in fifteen states where Workers' Compensation (WC) benefits and temporary disability insurance benefits (TDI) are offset instead of DI benefits."

Getting Tattoos Evidences Total Disability

An injured worker, who obtained tattoos to camouflage surgical scars of 6 surgical interventions, was held to be totally and permanently disabled. The evidence, presented at the time of trial, was found by the Judge of Compensation to provide a basis for an increase in the worker’s psychiatric disability that rendered the employee unable to work.

The worker testified that the side effects of a laundry list of medications that manifested low stamina and dry eyes. The drugs included:

• Buspar, an anti-anxiety medication, three times a day
• Nortiptyline, and anti-pain and antidepressant medication, three times a day
• Oxycontin, a pain medication, four times a day
• Topomax, a seizure medication used for pain relief, twice a day
• Methodone, a pain medication, four times a day
• Wellbutrin, an antidepressant, two to three times a day
• Bethanechol, a medication for dry mouth
• Prevacid, a stomach medication

The appellate forum affirmed the decision of the trial judge, Stephen Tuber, who in an extensive written decision  rejected the opinions of the respondent’s medical experts, Drs. Galina and Effron in favor of that of the petitioner’s expert, Dr. Peter Crain.

Dr. Crain testified that the reason why the injured worker obtained the tattoos made “psychological sense.” The reviewing form held that “…She explained that she obtained tattoos to help her deal with her "suicidal ideation" and to camouflage the scars she bore from the multiple operations.”

Kiessling v. Prudential Insurance Company, NO. A-3051-08T23051-08T2,  2010 WL 1928711 (Decided May 10, 2010)

To read more about psychiatric disability and workers' compensation click here.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits.

Are Second Injury Funds Going to be History Soon?

Second Injury Funds [SIF] are now undergoing a critical evaluation as the economy continues to deteriorate. Originally created post World War II, the SIFs encouraged the employers to hire handicapped employees who were hired and had pre-existing disability. The concept afforded a shared responsibility through pooled insurance and insulated the employer from the burden of on apportioning liability in total and permanent disability cases.

Recently, however, the SIF had become raided by State politicians in an effort to balance their State budgets. New Jersey highlights such a concern, and within the last decade funds have been raided three times in order to satisfy debt in the general treasury. Not only does it renege on the promise of providing benefits to injured workers, it slows down the bureaucracy of administrating a workers’ compensation program by inadequately funding staff. At recent hearings before the New Jersey State Senate there were a multitude of complaints concerning inadequate staffing of the SIF, including the need for more attorneys to represent SIF. As a result of this outrage there is pending before the state legislature a resolution to amend the New Jersey’s constitution to prohibit such raiding in the future of funds directed to employee benefits.

SIFs had been challenged by the insurance industry over the last 10 years and they have attempted to disband them and wind down their benefit distribution contributions. Such a challenge was recently opposed in the State of Missouri where an attempt to eliminate the SIF by 2011 was defeated.

Opponents the SIF’s indicate that the Americans with Disabilities Act insulates the employee from retaliatory claims, and the SIFs are no longer necessary. Additionally, insurance carriers would like more control over the distribution of the benefit dollars and the SIF appears as an additional obstacle to employers in crafting settlements in total and permanent disability cases.

It is likely that this debate will continue and that the trend towards elimination of SIFs will also continue.

NJ Beneficiaries Wait for Supplemental Increase in Workers’ Compensation Benefits

For almost 2 years New Jersey’s most severely injured and their families have been waiting for the legislature to act upon a law to provide for a cost of living increase of their benefits. The legislation, S-1005, would increase benefits of those injured after December 31, 1979. The bill was stalled in the legislature as the parties ironed out technical issues concerning the Social Security reverse offset. NJ is one of the few States remaining that allow workers’ compensation insurance carriers to benefit from Social Security offset rules.

Additionally NJ has side stepped the triennial increase that is provided for under the Social Security Regulations causing NJ’s injured workers not to be allowed to obtain any additional increases in benefits afforded by application of that provision of the Federal law.

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The Senate Labor Committee reports favorably Senate Bill No. 1005.
This bill provides, from July 1, 2006 forward, an annual cost of living adjustment in the weekly workers' compensation benefit rate for any worker who has become totally and permanently disabled from a workplace injury at any time after December 31, 1979 and for the surviving dependents of workers who have died from a workplace injury at any time after December 31, 1979.
The cost of living adjustment would be an amount such that, when added to the workers' compensation weekly benefit rate initially awarded, the sum would bear the same percentage relationship to the maximum benefit rate at the time of the adjustment that the initial rate bore to the maximum rate at the time of the initial award, except that the amount of the adjustment shall be reduced as much as necessary to ensure that the sum of the adjustment and the amount initially awarded does not exceed the amount which would cause any reduction of disability benefits payable under the Federal Old Age, Survivors and Disability Act. The amount of the adjustment would be paid from the Second Injury Fund (SIF), which is supported by a uniform assessment spread out evenly over all employers and insurers.
Current law requires such annual cost of living adjustments (COLAs) in the workers' compensation benefit rate for death and permanent total disability to be paid from the SIF, but only in cases in which the injury or death occurred before January 1, 1980. The bill extends the adjustments to cases originating after December 31, 1979, although the adjustments would apply only to benefits paid on those claims after July 1, 2006.
The bill makes no change in the provisions of sections 1 and 9 of P.L.1980, c.83 (C.34:15-94.4 and 34:15-94.5), which provide for the reduction of certain portions of workers' compensation benefits by the amount of Social Security disability benefits paid. In addition, the bill expressly states that the supplemental benefits shall not be paid in a manner which in any way changes or modifies the provisions of those sections.