Work Injury FAQs Work Injury Know Your Rights: On the Job Injuries Caused by Repetitive Stress At one time or another, we’ve all felt that the daily grind of work can be repetitive. However, when your job involves performing the same task over and over, it can lead to serious and permanent physical injuries. Many other physical injuries that occur, as a result of the day in, day out, repetitive nature of certain jobs, have been found to be work related entitling you to Workers’ Compensation benefits. What does this mean to you? It means that you may be entitled to a monetary award for injuries that occur from the constant physical stress on your body from performing your job. The three specific Workers’ Compensation benefits you are entitled to if you develop physical injuries as a result of performing your job are medical treatment provided by your employer, temporary disability benefits and a monetary award based on the degree of permanent injury. Repetitive Stress Injuries do not have to be completely caused by work, the courts require proof that the work caused the aggravation, acceleration or exacerbation of the injuries. The work exposure needs only to be a material cause of the injury. Carpal Tunnel Syndrome is one of the most common and well publicized repetitive stress injuries and it affects workers in a variety of fields in New Jersey, but overuse can cause a number of different injuries. Some examples of common repetitive stress injuries are rotator cuff tears in the shoulder as a result of constantly reaching or lifting overhead, back injuries including herniated discs caused by repetitive heavy lifting or a condition called epicondylitis in the elbow due to overuse of the arm. Repetitive lifting, reaching overhead, bending, kneeling, and climbing are all examples of the type of movements workers perform on a daily basis. These types of work, when performed over a period of time, require overuse of individual body parts and can cause a variety of injuries. Work related activities such as carrying heavy gear, loading and unloading pallets, lifting patients, lifting and pulling fire hoses or spools of electrical wire, assembly line work and climbing stairs and ladders all take a physical toll on the body. Even when you’re not moving, repetitive standing on hard surfaces can cause a painful condition in the feet known as plantar fascitis. Over a long period of time, these types of overuse activities can cause damage to a degree that weekend chores around the house won’t. If you think you have developed a Repetitive Stress Injury you should report this to your employer immediately and request medical treatment. If your employer will not send you to a doctor for treatment you should consult your primary care physician. If you develop an injury as the as a result of doing your job on a daily basis, you are entitled to Workers’ Compensation benefits. At Stark & Stark, we are experienced in these matters and would be pleased to discuss your particular circumstances. We provide free consultations to inform you of your rights and obligations under the law and strongly recommend that you call us today if you have been hurt at work. Why Do Workers Ignore Safety Rules? U.S. workers are ignoring important safety procedures, which put them at risk for workplace injuries, according to the results of a survey on safety professionals conducted by Kimberly-Clark Professional. The safety professionals were attending the 2008 National Safety Council Congress, and Kimberley-Clark Professional took the occasion to conduct its third annual survey on safety procedures compliance by American workers. The results showed that 89 percent of the respondents reported having observed failure by workers to wear their personal protective equipment (PPE) at work, in areas where the equipment was required. The general manager of Kimberly-Clark Professional’s safety business group said it was “disheartening” to find workers continuing to take unnecessary chances with their personal safety by not wearing protective equipment when performing hazardous tasks. This year’s finding was an unacceptable level of noncompliance with safety procedures in the workplace. In fact, the level of noncompliance has been increasing. In the organization’s first survey in 2006, the rate of noncompliance reported by respondents was 85 percent; in 2007, this rate rose to 87 percent, and now it is 89 percent. Not surprisingly, with the high noncompliance level, at least a third of respondents cited the failure to comply with safety procedures as the main workplace safety issue in their companies. At the second rank was the issue of inadequate management support and/or inadequate resources to support health and safety functions (27 percent). This was followed by under-reporting of injuries and illnesses suffered in the workplace (14 percent), training complexities on a multilingual, multicultural workforce (7 percent) and rising compensation costs to workers (5 percent). Is the worsening economy an underlying factor? The worsening state of the economy may partly explain the continued non-compliance. More than a third (34 percent) of the respondents cited the economy for having reduced their firms’ ability to allocate budgets for safety resources and worker training programs. But 59 percent did not blame the economy. Among the 34 percent who said the economy had affected their safety programs, further probing showed that: 63 percent said their firms had less money for education and training. 42 percent said personnel assigned to take care of safety training functions were reduced. 33 percent said management had to prioritize business imperatives over safety concerns. Injuries at the workplace cost American companies at least $50 billion a year. Safety Tip: Make sure the PPE in your company is one that workers want to wear. Workers may want their PPE to be more comfortable, or even more stylish in design. Sick Leave Injury Eliminated – What Does This Mean To You? The Legislature and Governor recently enacted and signed into law legislation which eliminates the sick leave injury program upon the conclusion of the state collective bargaining agreement for state employees. For many years State employees benefited from the program that guarantees them full salary for up to one year from the date of a work related injury. This coverage traditionally has started from the first day of the injury, and has included days or parts of days which may be taken for medical treatment related to that work related injury. All of that has now come to an end. Instead of receiving sick leave injury benefits, State employees will be eligible for traditional workers’ compensation benefits administered through the Bureau of Risk Management of the Department of Treasury. Workers’ compensation benefits are payable at 70% of one’s gross weekly wage up to a maximum for the year 2010 of $794.00 per week. No taxes are deducted from workers’ compensation benefits and all non contributory benefit costs are still paid by the employer to Pensions and Benefits. Any premiums payable by the injured worker for benefits such as dental insurance coverage, or pension loans, are either deducted from the workers’ compensation check or billed separately. Any dispute over workers’ compensation benefits would go to the New Jersey Division of Workers’ Compensation. This creates several problems for State employees. First, workers’ compensation benefits are paid at a maximum of $794.00 per week. This means that anyone earning over $59,000 per year will not receive full compensation for their lost time. Second, in order to qualify for workers’ compensation, an injured worker must be out of work at least seven days. Any lost time injury of less than eight days would simply be chargeable to the workers’ sick time. Because of the way workers’ compensation benefits are calculated, it appears those days will be lost and not recoverable. Worse still, workers’ compensation does not pay for days or part of days taken for medical treatment due to a work related injury. Those will be charged to the individual’s sick time. The Administration of payments of workers’ compensation benefits is done by the Bureau of Risk Management of the Department of Treasury. All decisions regarding the payment of workers’ compensation temporary disability will be made by the Bureau of Risk Management and not by the respective departments. Because of the waiting period, workers’ compensation benefits will not be payable for at least three weeks from the date of the injury. It is clear that this change will result in accumulative loss of sick time by State employees. It will result in delays in receiving benefits as well as other financial losses because of the limitations on benefits. Elimination of Disability Pensions This same legislation will eliminate both the accidental disability pension as well as the ordinary disability pension for members of the Teachers Pension and Annuity Fund as well as new employees enrolled in the Public Employees Retirement System after the effective date of the bill. Traditionally, members of all of the State Pension Systems were eligible for an accidental disability pension in the amount of 72.3%, if as a result of their employment, they suffered an accident which is the sole cause of their inability to work. The ordinary disability retirement allowed for the payment of 43.6% of salary as well as retiree medical in the event that a member of either pension system became disabled from performing their job and had 10 years of service. Both these pensions will end for new enrollees and will be replaced by a disability insurance plan. This new law limits enrollment in the disability insurance plan to new employees under the age of 60. It will pay benefits until the age of 70 if the disability commenced prior to age 60. Under this new plan, a public employee will be considered totally disabled if he is unable to perform the duties of his occupation. There is an additional requirement that after 12 months following the commencement of disability, a public employee will only be eligible for benefits if he is unable to engage in any gainful employment. There are other limitations as to eligibility as well. This new limitation in benefits will result in many injured workers who are unable to return to work, being forced out of their jobs with no benefits. This applies particularly to people whose jobs required heavy physical exertion and who have suffered a physical injury. Is Your Job Getting Repetitive? At one time or another, we’ve all felt that the daily grind of work can be repetitive. However, when your job involves performing the same physical motions over and over with your hands, it can lead to a serious and permanent physical injury such as Carpal Tunnel Syndrome. The Supreme Court of New Jersey has ruled that workers who develop permanent injuries over a period of time from the repetitive nature of their work should receive Workers’ Compensation benefits. Carpal Tunnel Syndrome is one of the most common and well publicized Repetitive Stress Injuries and it affects workers in a variety of fields in New Jersey. Common causes of Carpal Tunnel Syndrome are repetitive bending of the wrist, repetitive and forceful grasping with the hands and other repetitive movements of the hand and wrist according to the American Academy of Orthopaedic Surgeons and the American Medical Association. If your job involves these risk factors, you may start to experience the physical complaints associated with Carpal Tunnel Syndrome. These include numbness, tingling or pain starting in the fingers and hands that can extend up the arms, often worsening at night. Treatment ranges from wearing wrist splints to a surgical release of the carpal tunnel, the area surrounding the nerve running into the hand. The three specific Workers’ Compensation benefits you are entitled to if you develop these symptoms as a result of performing your job are medical treatment provided by your employer, temporary disability benefits and a monetary award based on the degree of permanent injury. Whole industries have sprung up designed solely to prevent Carpal Tunnel Syndrome, but despite efforts at prevention, this is still a prevalent workplace injury. Typing on a computer keyboard is probably the most well known cause of Carpal Tunnel Syndrome, but it is just one of many jobs that can lead to this problem. Other professions that can place you at risk for Carpal Tunnel Syndrome include factory work assembling small machine parts, laundry room clerks that spend their days folding and lifting laundry, construction workers that use a jackhammer, drill or other tools on a repetitive basis, sign makers who assemble and install street signs for municipalities or electricians that are constantly manipulating wires and tools with their hands. Many other jobs that involve constant stress on the hands and wrists have led to Carpal Tunnel complaints. If you think you have developed Carpal Tunnel Syndrome you should report this to your employer immediately and request medical treatment. If your employer will not send you to a doctor for treatment you should consult your primary care physician. These injuries are often denied by employers’ insurance carriers as unrelated to work and there are even doctors who believe that repetitive use of the hands does not cause Carpal Tunnel Syndrome. Fortunately for workers, the Supreme Court of New Jersey, the American Academy of Orthopaedic Surgeons and the American Medical Association all disagree. If you develop Carpal Tunnel Syndrome as a result of doing your job on a daily basis, you are entitled to Workers’ Compensation benefits. At Stark & Stark, we are experienced in these matters and would be pleased to discuss your particular circumstances. We provide free consultations to inform you of your rights and obligations under the law and strongly recommend that you call us today if you have been hurt at work. When Does the Workday Really Begin or End? When do you really start or stop working? For many people, the lines are blurred. Is it during your drive to work while you’re going over the last minute details of a presentation in your head, that last phone call to a client on your cell phone during the drive home, or when you actually step foot in the building? In many cases if you are in an accident before you actually step foot in your employer’s building or at least out of the parking lot onto the sidewalk, it will not be considered work related for purposes of workers’ compensation. The same is true for injuries that take place once you’ve left the workplace. Why does this matter? If your accident is covered under workers’ compensation, 100% of your authorized medical treatment will be covered, including co-pays. You will also be paid temporary disability benefits tax free for missed time from work at a higher rate than State Temporary Disability Benefits or many private short term disability plans. If you are involved in a serious accident, your medical bills could exceed the coverage of your auto insurance – there is no limit to the insurance carrier’s medical liability in a workers’ compensation claim. This is not an issue of suing your employer, with very few exceptions, employer’s in New Jersey are immune from lawsuits by injured workers – it is about knowing your statutory rights as an employee in this state. Injuries that result from an accident are deemed work related if they arise out of and in the course of employment under the New Jersey Worker’s Compensation statute. Exactly when an employee is “in the course of employment” has been further interpreted by the courts in New Jersey. The main issues is control. Accidents which occur on the way to or from work are covered under what is commonly referred to as the “going and coming” rule. The actual act of driving to or from the office is not considered a benefit to the employer, so until a worker is performing tasks of direct benefit to the employer or under the employer’s physical control, an accident is not work related. The statute states that employment commences when an employee arrives at the employer’s place of employment to report for work and ends when the employee leaves the workplace. Basically, until you are in your employer’s control, anything that happens to you is not covered by workers’ compensation insurance. There are exceptions to the “going and coming” rule. When an employee is required to be away from the primary workplace by his or her employer or if actually engaged in the direct performance of employment duties, this is considered a “special mission”. Paid travel time and use of an employer authorized vehicle is work related. If employees have designated parking spots or the employer owns the parking lot, employment generally starts when you step out of the car. However if there is a general parking lot, not owned or controlled by your employer, employment doesn’t start until you step into your employer’s building or a sidewalk under the control of your employer. Travel to meet with clients away from the office is also considered work related. Technology has added a new dimension to this issue. If you are engaged in a cell phone call with a client on the way to work or discussing a project with a fellow employee on your drive home, and are involved in a motor vehicle accident, it should be covered by workers’ compensation – even if you’re on your way to or from the office. Workers’ compensation is a no-fault system, so it doesn’t matter if you’re wearing that hands free head set that never seems to work or not. In this situation, you would be directly performing your job and entitled to workers compensation benefits. If you have been injured outside the workplace, but it is connected to your job, you may be entitled to workers’ compensation benefits. These benefits include medical treatment, temporary benefits while out of work, and in the case of a permanent injury, a dollar award based on the extent of the impairment. When You Can’t Work the Bills Just Keep on Coming: Income continuation during periods of disability If you are injured or become ill and disabled, you may have to miss substantial time from work. If this happens, you will face questions regarding job security, health benefits and how to receive an income while you’re out of work. If you are injured at work, you are entitled to temporary compensation, medical benefits and possibly even a permanent disability award. These benefits are paid through your employer’s workers’ compensation insurance carrier or by your employer, if it is self-insured. If the doctor says you are able to return to work, you must attempt to return to work. However, if the doctor sends you back with restrictions and your employer does not have a modified duty position, you will continue to collect temporary benefits. If you suffer a non work-related injury or illness, you may qualify for up to six months of State Temporary Disability Benefits (TDB) through the New Jersey Division of Temporary Disability Insurance. If your employer does not contribute to the state TDB program, it must provide equal or greater benefits through a private short term disability plan. Check with your employer if you are unsure which program you qualify for. Also, the State of New Jersey now provides up to six weeks of Paid Family Leave, to care for family members who are sick or disabled. In 1993, President Clinton signed the Family and Medical Leave Act (FMLA) into law, requiring employers to provide up to twelve weeks of unpaid leave of absence and continuation of health benefits when an employee cannot work due to personal illness or disability. The FMLA applies to employers with 50 or more employees. You can also apply for family leave if you need time off to care for other family members who are stricken with illness or death, or for the birth or adoption of a child. The FMLA guarantees unpaid leave and can be used in with workers’ compensation benefits or State TDB to keep your job open. Because workers’ compensation and TDB rates are capped (the maximum rates per week in 2009 are $773.00 for workers’ compensation and $546.00 for TDB), you may want to consider a private disability policy if you earn more than these amounts. Your private plan would make up the difference between your wage replacement benefit and your salary/income. In the event you become permanently disabled, you may qualify for Social Security Disability (SSD) benefits. To qualify, you must be considered totally disabled from performing any substantial, gainful work, and must be disabled or expect to be disabled for at least twelve months. You can apply at your local office, on the phone (800-772-1213) or online (www.ssa.gov). In the event you are turned down by the SSA, you must file an appeal within 60 days. You should contact an attorney with questions about a SSD appeal within the designated 60 day time limit to file an appeal. Are You Safe at Work? There are as many as 100 species of mold which can cause infection in humans. These infections can cause allergic reactions such as breathing difficulties, nasal congestion, itchy watery eyes, dry cough, headaches, memory loss, mood changes and fever. Long term exposure can cause permanent nerve damage, organ damage, cancer or immunity suppression. This area has experienced an excessive amount of rainy weather this year. You can hardly open the papers without seeing headlines such as “The Fungus Among Us”, Trenton Times, August 25, 2003, “Breaking the Mold Requires Crash Course”, Trenton Times, August 28, 2003, and “Mold Hits High School Library”, Trenton Times, September 10, 2003. Mold has become a significant workplace hazard. It finds its way into our offices through leaky roofs, plumbing or basements. Because of less expensive more porous materials and more energy efficient buildings the mold has a place to live and thrive and the moisture it needs is sealed in our air tight buildings. Once the mold becomes visible, it is a sign of a serious behind the scenes problem. It is not enough to just clean the visible areas. The mold that we can see is merely the tip of the iceberg. If the ceiling tiles, dry wall and floor coverings are not properly cleaned, then it is only a matter of time before the mold resurfaces. To ensure mold will not return, windows should be opened to let fresh air in and moisture out. An industrial dryer should be rented or purchased to ensure that the area is completely water free. An exhaust fan can also help to circulate the fresh air more quickly. You should request that your employer or building operator have indoor air quality studies performed, either through a private company or through your local OSHA office, to make sure that the clean-up was successful in removing all traces of the mold from the building and air. If you or your co-workers develop any of the symptoms mentioned above or mysterious sneezing or fatigue, you may have mold in your work place. If your workplace is found to be contaminated, you may be entitled to medical testing and treatment at no cost to you. In addition, you may be eligible for disability benefits if you are required to be out of work while you recover or if your illness has permanent affects on your breathing or organs. For more information on your rights, please call any of our worker’s compensation attorneys. At Stark & Stark, we are experienced in these matters and would be pleased to discuss your particular circumstances. Stress and the Workplace Let’s face it, work can be stressful. However, when events at your job start to cause emotional and/or physical problems it can become overwhelming. With the constant need for increased productivity and lack of job security found in today’s workplace, stress is a common result. When stress goes untreated, it can cause a variety of problems including headache, depression, anxiety, loss of sleep and loss of productivity at work. If stress from work causes you physical or emotional problems, you may be entitled to workers’ compensation benefits. It’s usually something out of the ordinary that takes a physical or emotional toll on a person. Stress in the workplace can be caused by a variety of factors including deadlines, workload, conflicts with co-workers, events outside of work, or a specific event that occurs while at work. The National Institute for Occupational Safety and Health (NIOSH) states that job stress can lead to poor health and even injury and a study by Princeton Survey Research Associates shows that three-fourths of employees believe the worker has more on-the-job stress than a generation ago. If workplace stress causes you adverse physical or mental problems, you may be entitled to workers’ compensation benefits. The three specific Workers’ Compensation benefits you are entitled to if you develop stress related symptoms arising directly from the performance of your job are medical treatment provided by your employer, temporary disability benefits and a monetary award based on the degree of permanent physical or mental injury. Whether a person is entitled to workers’ compensation benefits is based on the source of the stress. The courts in New Jersey have held that an employee who developed high blood pressure, depression and posttraumatic stress disorder caused by questioning by state police regarding workplace theft was entitled to an award of workers’ compensation benefits. So, if an employee is harassed or discriminated against by a supervisor or a firefighter witnesses a fatal injury during a call, these external events arise out of the job, and the resulting stress can cause physical or emotional side effects. Here’s the catch, the working condition must be stressful when viewed objectively, proven by believable evidence beyond just the perception of the person affected. The stress must be peculiar to the particular workplace as opposed to working conditions found elsewhere. For example, an employee who is laid off cannot usually claim work related stress, because being fired is not peculiar to one type of work. NIOSH points out that certain working conditions are stressful to most people: poor management style, lack of defined work roles, constant job insecurity or exposure to dangerous physical conditions such as excessive noise or pollution are all job conditions that cause stress for most people. There are a variety of ways to manage stress including counseling, diet and exercise, avoiding the stressful situation and developing successful stress management techniques. If workplace stress causes you adverse physical or mental problems, you may be entitled to workers’ compensation benefits. What Should I Do If I Get Hurt At Work? REPORT the accident to your employer, even if you think you are not seriously hurt. By reporting the accident you protect yourself against the employer who might claim that you were injured away from the workplace. If possible, report the accident in writing or in the presence of a reliable witness. Using an accident report form provided by your union is best. REQUEST medical treatment immediately if necessary. Under New Jersey law, the employer has the right to name the doctor who is authorized to treat your injuries. If your employer refuses to send you to a doctor, then you should see one on your own. Make sure to tell whatever medical personnel you see, how you were injured at work and what hurts. CALL the Workers’ Compensation Group at Stark & Stark to speak to a lawyer about your accident. This free consultation will explain your rights and benefits under the Workers’ Compensation Law, and will also enable us to investigate whether you have a negligence case in addition to your Workers’ Compensation claim. It is important to begin investigating these potential third party cases as quickly as possible, especially if it involves a piece of machinery or a defective product or piece of equipment. If you follow the procedures outlined above, you will be entitled to three main benefits: MEDICAL TREATMENT free of charge to you. There are no deductibles, co-pays or balances that you are responsible for. TEMPORARY DISABILITY PAYMENTS, if the authorized doctor keeps you out of work for more than seven days. Workers’ Compensation temporary disability is paid at the rate of seventy (70%) percent of your gross weekly wage, up to a maximum, which for injuries occurring in 2008 is $742.00 per week. These benefits are Federal and State tax-free and are paid as long as you are under active medical treatment and the doctor certifies that you are unable to work while undergoing that treatment. Unlike State Temporary disability benefits which are for non -work related injuries or illnesses, Workers’ Compensation temporary disability benefits are not limited to twenty-six (26) weeks. PERMANENT DISABILITY is the third and final benefit available under the Workers’ Compensation law. Permanent disability can either be partial, if you are capable of returning to work, or total, if you can never work again. The amount of compensation for partial disability is determined by what particular part of the body is injured and how severe the loss of function of that part. On the other hand, total disability is paid at the same rate as temporary disability, but may be reduced if you receive Social Security Disability benefits. If you have significant injuries that are likely to keep you out of work for at least one year, then you should also apply for Social Security Disability benefits. If you are denied by Social Security, you should call one of our attorneys who can help you appeal. REMEMBER to call Stark & Stark if you have any questions about your rights. Court Again Mulls Psychic Trauma As Eligibility for Accident Pension Vicki W. Beyer, Shareholder and member of Stark & Stark’s Workers’ Compensation group, was quoted in the article Court Again Mulls Psychic Trauma As Eligibility for Accident Pension in the November 28, 2007 edition of the New Jersey Law Journal. The article discusses several recent cases that will determine whether law enforcement or corrections officers can qualify for enhanced accidental disability pensions based on psychological trauma alone. You can read the full article here. Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2007 In recent years, the Medicare Secondary Payer Act has wreaked havoc upon States Workers’ Compensation Systems. Worse still, injured workers have suffered from intolerable delays and onerous new regulations before they can resolve their claims often waiting a year, even more. CMS and their contractors refuse to admit they are overwhelmed and incompetent to handle the workload as has been cited by the General Accounting office. Clearly a change is needed. A Bill now before Congress can bring much needed relief for injured working people. It is HR 2549 (PDF) entitled: “Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2007″. This bipartisan proposal will exempt workers’ compensation settlements less than $250,000 or those settlements with a present value of less than $250,000. It includes a built-in escalator for future settlements which will raise the $250,000 floor over time. This legislation also provides an alternative to the set-aside process for settlements larger than $250,000 by creating a safe harbor set-aside amount of 10% of the settlement. It will also allow for direct payment to Medicare of the set-aside amount in lieu of administration of the trust. The Bill provides a clear process for appeals from any determination. It also requires Medicare to recognize and be bound by decisions on issues of compensability by the various States Workers’ Compensation Courts and Administrations. This law, if passed, will also require Medicare to respond to conditional payment requests within 60 days. Those that would argue that this Bill provides a windfall to the insurance industry are missing the point. It is the worker who suffers the delays in receiving compensation for injuries wrought by Medicare’s ineffective administration. Passage of this legislation will clear the backlog in the State’s workers’ compensation systems and allow workers’ to make decisions concerning their pending cases in a more predictable and certain environment without fear of being subjected years later to disruptions in benefits.