Public Employment Issues in the Workplace Introduction The purpose of this brochure is to provide you, the public employee, with an explanation of your rights when you are injured at work. It explains the benefits that are available to you when you are injured or become ill and disabled, either temporarily or permanently, as a result of job-related accidents or exposures, as well as some non job-related disabilities. For the most part, job-related injuries and illnesses are covered under the Workers’ Compensation Laws of the State of New Jersey. Here, we explain New Jersey workers’ compensation laws, as well as other benefits unique to public employees, including: Sick Leave Injury (SLI) benefits, Accidental Disability and Ordinary Disability Pension benefits. A brief explanation of how to pursue an appeal of denial of benefits, the right to proceed before the Merit System Board and the Office of Administrative Law is also included. This information is to be used only as a guide to your rights and responsibilities as a public employee. Please consult a work injury attorney or your union or personnel representative to clarify your individual situation. I. Reporting Accidents All work-related accidents and injuries must be reported to the employer within ninety days. Many employers, however, particularly municipalities, require accident reports to be filed within twenty-four to forty-eight hours of an injury. Pursuant to N.J.A.C. 4A:6-1.7, a State employee must prepare a written report of a work-related accident or illness within five (5) days of the accident, or as soon as possible thereafter, in order to obtain SLI benefits. Accident reports which are not filed in a timely way may result in a denial of SLI benefits (Sick Leave Injury) and a delay in receipt of workers’ compensation benefits. Therefore, any incident, no matter how trivial or uneventful, should be reported immediately through the filing of an accident report, even if medical treatment is not immediately needed. When in doubt, it is better to file immediately for any incident rather than to wait to see if the injury will go away. A. State of New Jersey State workers’ compensation claims are reported to your Department Personnel Office and forwarded to the Department of Treasury, Division of Risk Management, CN 620, Trenton, New Jersey, 08625-0620. B. County of Mercer At present, Mercer County workers’ compensation claims are reported to County personnel and forwarded to Scibal Associates, P.O. Box 839, Atlantic City, New Jersey, 08404-0839. As of January 1, 1999, however, the County of Mercer, as well as some municipalities, will buy insurance on the open market. C. City of Trenton and Board of Education The City of Trenton and Trenton Board of Education workers’ compensation claims are reported to City Personnel and forwarded to Inservco Insurance Services, P.O. Box 7366, Trenton, New Jersey, 08628-0366. D. Other Municipal and School Workers For other municipal workers, check with your Municipal Personnel Department. II. Medical Benefits Your employer is responsible to pay for 100% of all reasonable and necessary medical treatment costs for a work-related injury or illness without deductibles. Important Requirement: Pursuant to the Workers’ Compensation Law, your employer has the right to select the medical provider. Therefore, unless an emergency arises, you must receive prior authorization from your employer when seeking medical attention for a work-related injury or illness. A request for treatment should be directed to your employer’s medical department or personnel office. Remember: Report all injuries to your employer. III. Temporary Disability Benefits, Sick Leave Injury, and Sick Leave A. Temporary Total Disability Benefits While you are out of work and under active, authorized medical care for a work-related injury or illness, you are entitled to receive temporary total disability benefits through workers’ compensation. The amount of this benefit is 70% of your gross average weekly wage up to a maximum established each year by the Department of Labor. This benefit is activated once you are out of work for more than seven (7) calendar days. Once activated, the benefit will be paid retroactive to the first day out of work, and continue as long as you remain under both active medical treatment and certified by the authorized physician as being unable to work. B. Sick Leave Injury (SLI) State workers are covered for temporary disability benefits under the Sick Leave Injury program or SLI. There are some differences in the law that require payment of temporary disability through workers’ compensation and the regulations creating the SLI benefit. As long as the claim is supported by medical documentation clearly showing that the injury was a result of the direct performance of the job, SLI is applicable. SLI pays full salary for up to one (1) calendar year from the date of injury. This benefit commences from the first day you are out of work. There is no waiting period. Income is considered to be the State worker’s regular pay and does not include overtime. (NOTE: Some municipalities have a shorter period for full pay.) If a State worker continues to be disabled and under active medical care longer than one (1) calendar year from the date of injury, the State worker will then be eligible for temporary disability benefits as provided by the Workers’ Compensation Law. The one calendar year anniversary date is strictly enforced. That is, any absence after the one-year anniversary date of the injury will be covered by workers’ compensation and not SLI, regardless of the amount of time taken off during the first year. C. Denial and Appeals Rights If your employer denies you SLI benefits, they must put the denial in writing. Your employer may claim that the accident merely aggravated a prior condition or that the injury did not occur while in the direct performance of your duties. (These exclusions do not apply to workers’ compensation benefits.) SLI denials can be appealed to the Merit System Board. The deadline for filing an appeal is twenty (20) days from receipt of the denial. The Merit System Board will review the record and any additional evidence submitted by the parties and make its findings. If SLI is denied by the Merit System Board, the matter may be appealed to the Office of Administrative Law for a hearing on all issues. Employees are entitled to Union representation, as well as legal representation, throughout the appeal process. When your employer has charged you sick time or paid workers’ compensation benefits, it may also be possible to file a grievance at the end of the workers’ compensation case. D. Sick Leave for County and Municipal Employees County employees, and most Municipal employees, are covered for temporary disability under a program similar to SLI as described above. Most employees will also receive full pay at their regular pay scale for a specified period in which the worker is disabled and under active medical treatment and then be eligible for workers’ compensation benefits after the period of SLI coverage expires. E. Pension Benefits and Employer Contributions When you are out of work and under active medical treatment for a work-related injury or illness, the employer MUST continue contributions to pay your health insurance as well as continue pension contributions. Lost time for a work-related injury counts as creditable service under the State pension plans. Your rights to a pension are more fully described in the information to follow in Section V. If your contributions to health and pension have been terminated during a period of temporary disability, it is extremely important that you contact the Division of Pensions and your personnel office. F. Employer Denial of Workers’ Compensation Benefits If your employer has denied you workers’ compensation benefits, there are remedies which can be pursued through the Division of Workers’ Compensation. An attorney, on your behalf, may file a Motion before the Division of Workers’ Compensation to ask a Judge to order your employer to provide these benefits. It will then be up to the Judge to decide what benefits should be provided. While the Workers’ Compensation Court does not have jurisdiction over the SLI or other sick leave benefits provided to public employees, the Court can order payment of temporary disability benefits pursuant to the workers’ compensation laws. A grievance can then be filed to re-credit days. G. Discharge from Employment It is specifically prohibited by law for an employer to fire you for filing a workers’ compensation claim. Employers taking such action may be held liable for reinstatement, back pay and penalties as assessed by the Division of Workers’ Compensation and may be in violation of other State laws. However, public employees can be removed from their positions while out of work on temporary disability benefits. This can only happen, however, after the employee has exhausted all possible leaves of absence. If you are unable to return to work after an injury, you may be entitled to a disability pension. These pension benefits are explained in greater detail in the information that follows in Section V. H. Family Leave An important right to an approved leave of absence is provided by the Family and Medical Leave Act of 1993 (FMLA). This federal law provides up to twelve (12) weeks of unpaid leave of absence when you cannot work due to personal illnesses. 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 of a child. Such leave must be requested in writing. IV. Permanent Disability Benefits A. Partial Permanent Disability After you are released from active medical care, you may be entitled to compensation for a permanently disabling condition which affects your daily or working life. An attorney may file a Claim Petition with the New Jersey Division of Workers’ Compensation on your behalf and will arrange a medical evaluation for you. This examination will provide your attorney with an expert medical opinion as to the extent of your permanent disability. The amount of money awarded is calculated in terms of percentages of disability and must be based upon objective medical evidence demonstrating a physical or mental impairment. This means that the disability is determined by test results or doctors’ physical examinations. Your employer will also set up their own evaluations to serve as the employer’s expert. Once these examinations are complete, a conference and hearing are held before a Judge of Compensation who will determine the percentage of disability. The Judge will take into account your testimony as to the extent to which the injury effects your daily and working life, and the opinions of the evaluating doctors in terms of their estimates of the disability and objective medical findings. V. Pension Benefits If you are unable to return to work, you may have early retirement options. Disability pensions are available through the Public Employee Retirement System or the Police and Firemen’s Retirement System, as well as the other State-administered pension systems. There are two different types of early retirement disability pensions; they are as follows: A. Ordinary Disability Pension The ordinary disability pension is available to any employee with ten (10) years of service with the State of New Jersey, or a pensions system administered by the State, and members of the Police and Firemen’s Retirement System with five (5) years of service. This pension is available to you if you become physically disabled from performing your duties within your job classification. Medical proof of the disability is required. Once accepted, an ordinary disability pension pays 40% of your salary plus medical benefits. You may also receive full workers’ compensation benefits without reduction. B. Accidental Disability Pension If you suffer from a traumatic event at work which is the sole substantial or significant cause of your disability, you may be eligible for an accidental disability pension of 66 2/3% of your salary. However, to do so, you must meet each of the following criteria: 1. Traumatic Event In order to receive an accident disability pension, your disability must have been caused by a traumatic event as defined by the law. A traumatic event is not merely an accident; rather, it requires that an external involuntary force be the cause of the accident. This means that “to be eligible for accidental disability retirement allowance, a worker must demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of the injury itself was a great rush of force or uncontrollable power.” Kane v. Board of Trustees, Police & Firemen’s Ret., 100 N.J. 651, 663 (1985). For example, if you are pushed or struck by another individual or by an object, you would meet this requirement. Slip and fall accidents will generally not be eligible. 2. Sole Substantial Cause Pension law requires that the traumatic event must be the sole substantial or significant contributing cause of the disability. This means that if you have prior medical problems, you may have difficulty obtaining the pension unless you can prove that you were able to work without restriction even with the prior medical condition up to the accident. 3. Inability to Perform Duties The Pension Board will look at your job title and may require a medical examination to decide if you can perform your job as defined in the job description. C. Choices Between Workers’ Compensation Benefits and Accidental Disability Pension If you retire on an accidental disability pension, you must choose between this pension and benefits under workers’ compensation because the pension will be reduced by workers’ compensation payments. The reduction shall be a dollar-for-dollar reduction in pension benefits for the amount and time workers’ compensation benefits are received. (NOTE: This reduction does not apply to the ordinary disability pension.) It is important to note that workers’ compensation benefits are non-taxable but may be subject to additional offsets, while pension benefits are subject to tax. D. Pension Application Process The best time to begin thinking about pension options is when it becomes apparent after consulting with the treating physician that you may no longer be able to perform your job duties. CAUTION: You must be an active member of the pension system when you apply. Do not submit your resignation before applying for your pension. Pension applications are available from the Division of Pensions which can also estimate the amounts of money that you might receive from your various pension options. You should obtain not only the quotes for the disability pension, but also the quotes for your service pension. The application also permits you to make application for both accident disability pension (66 2/3%) and the ordinary disability pension (40%) at the same time if you have ten (10) years of service (or five (5) if a member of PFRS). The application then goes to the Board of Trustees of your pension system which may request an evaluation by a physician and will generally consider it at one of its monthly meetings. E. Limitations Period The application for an accidental disability pension must be filed with the Pension Board within five (5) years from the date of the traumatic event. F. Pension Appeals A denial of a disability pension application can be appealed within forty-five (45) days of receipt of the decision by the Pension Board. An attorney can file the appropriate papers by requesting a hearing before the Office of Administrative Law (OAL). An OAL Judge will conduct a hearing to determine whether you should qualify for the pension. Your testimony may include a description of the accident and medical testimony as to either the cause of the disability or your ability to return to work. After completion of all testimony, the Judge will make a determination which is sent to the Board of Trustees of the Pension System. The Board either accepts or rejects the Judge’s findings. If the Board rejects the Judge’s findings, the matter may then be appealed to the Appellate Division of the Superior Court. VI. Social Security Disability If you are seriously and permanently disabled, you may qualify for Social Security disability benefits. In order to qualify for Social Security disability, you must be considered totally disabled from performing any substantial, gainful work, and must be disabled or expected to be disabled for at least twelve (12) months. The Social Security Administration (SSA) may consider other sources of income, such as pension and workers’ compensation benefits, in determining the amount of a disability entitlement. The local Social Security office will supply all necessary applications and provide assistance in completing all forms for Social Security Disability. In the event that you are turned down by the SSA, you may request a reconsideration of their decision within sixty (60) days. If the reconsideration is denied, you should consult an attorney within sixty (60) days to determine if it would be feasible to request a hearing before a United States Administrative Law Judge who will review the entire file and conduct a hearing.