Workers’ Compensation

//Workers’ Compensation
Workers’ Compensation 2018-07-26T14:52:12+00:00

New Jersey Workers’ Compensation and Personal Injury Lawyers

A workplace injury is usually a devastating event, whether it occurs because of a sudden trauma, like a fall from a height, or long-term exposure to a certain adverse condition, like repetitive motion. Many people wonder if they will ever be able to return to the jobs they love and continue to provide for their families. Workers’ compensation exists not only to provide cash benefits while victims recover, but also peace of mind for the future.

Similarly, a motor vehicle collision or other personal injury can be quite traumatic in more ways that one. While the injured victim is hurt and unable to work, unpaid bills pile up, the insurance company calls almost constantly offering to settle the case, and the persistent pain and suffering robs victims of the enjoyment he or she once found in everyday activities. Compensation is available in these cases, as well, but no one will just give you anything. You have to take it.

Sussex County Court House is where all Family Law matters are handled in Newton NJThe aggressive attorneys at Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C. stand up for injury victims, whether they were hurt at work or as the result of someone else’s negligence. We diligently prepare your case so you get the most possible financial compensation. At the same time, we guide you through the process, including both the legal and nonlegal aspects of your case, so you never feel isolated.

The Story Behind Workers’ Compensation

In the early 1900s, in what is known as the Grand Bargain, workers gave up their right to sue in court and obtain compensation for their injuries in exchange for an expedited system of no-fault insurance that would pay for lost wages, medical bills, and other economic damages related to these injuries.

As recently as a few decades ago, the New Jersey workers’ compensation system was relatively efficient and hearing officers paid reasonable claims with little fuss. In this environment, many if not most claimants did not even need an attorney. But recently, the system has been weighed down by bureaucracy as a way to force victims to either abandon their claims or settle them for far less than full value, and injury compensation rates have steadily declined. At the same time, the costs associated with these injuries, most notably hospitalization and medical bills (241 percent increase since 1980), have gone up substantially.

The bottom line is that, in order for today’s injured worker to get a fair-sized piece of an ever-shrinking pie, an experienced and assertive workers’ compensation attorney is absolutely mandatory.

Filing Claims

Strict time deadlines apply in these cases. In fact, if injured workers do not report the incident within 90 days, they may lose the right to obtain compensation for their injuries.

The 90-day rule is not much of an issue when it comes to falls, electrocutions, and other trauma injuries. If the workplace injury is an occupational disease that appears over time, such as hearing loss or respiratory distress, the insurance company often tries to deny worker benefits on this basis. Making matters even more complicated, in some cases, most notably mesothelioma and other asbestos-related diseases, symptoms may not appear for years or even decades.

In these cases, an attorney can set the record straight and correctly point out that the proper measurement of the 90-day rule is the time that the victim’s symptoms appear and the time that the victim connected these symptoms with workplace activity.

Workers’ Compensation Process

The first step in a workers’ compensation claim is an insurance adjuster’s review. Because of the dwindling financial resources in the system, the adjuster nearly always denies the claim, at least in part. It is important not to be discouraged because this initial review is only round one.

Round two is an informal hearing, which despite the name is more like a settlement conference. While there is a neutral hearing officer who is empowered to make findings of fact and conclusions of law, the hearing officer’s real job is to facilitate settlement between the two parties.

Cases often settle on favorable terms at this point, partially because the victim has an attorney and the insurance company knows the victim is serious and partially because medical treatment is often substantially complete by this time and therefore it is easier to assign a fair settlement value to the case.

Round three is a formal hearing that is more like a trial because the victim’s attorney may cross-examine witnesses, introduce evidence, and make legal arguments. Because of the bureaucracy, the waiting time for a formal hearing can be several months.

If the hearing officer makes an award, specifically for lost wages, such award is often retroactive to the date of the injury. Moreover, if the victim has been working with an attorney this whole time, the attorney probably sent a letter of protection to the treating physician, which means that the victim need not pay anything upfront for medical bills.

The hearing officer’s decision is usually appealable to the Superior Court’s Appellate Division.

Compensation Available

In workers’ compensation cases, injured victims do not need to establish fault to obtain compensation for their medical bills, including:

  • Emergency care,
  • Followup care,
  • Medical devices,
  • Prescription drugs, and
  • Rehabilitative therapy.

In most cases, the medical benefits last until injured workers reach their maximum medical improvement, at which point they are cleared to return to work. Furthermore, in most cases, a victim must see the company doctor, so if there are treatment issues, an attorney’s intervention is required.

Compensation is also available for lost wages, depending on the nature and severity of the workplace injury.

  • Temporary Disability: Most trauma injuries fall into this category because given time, treatment, and therapy, most all of these injuries heal. Victims are entitled to 70% of their average weekly wage for the duration of the disability. Bear in mind that the “average weekly wage” usually includes regular cash compensation, irregular performance bonuses, and noncash compensation, like tuition reimbursement.
  • Permanent Partial Disability: Some people suffer permanent injury to part of their body, such as an eye or back, but they are still able to work in some capacity. In these cases, the amount and duration of payments depends on the nature and extent of the injury.
  • Permanent Total Disability: Persons who reach their maximum medical improvement but still cannot return to work are entitled to pension-like benefits that last a minimum of 450 weeks.

The vast majority of workers’ compensation and other injury cases settle out of court, and an attorney is usually the best judge of a fair settlement value.

The Difference Between Workplace and Non-Workplace Injuries

In most cases, workers’ compensation is the exclusive remedy for job injuries. About the only exceptions are cases that involve a defective product or extreme recklessness on the employer’s behalf.

In contrast, the civil court system is the proper forum for nearly all personal injury claims, such as vehicle collisions, dog bites, and medical malpractice. While victims must establish negligence (fault) in civil court, the tradeoff is that victims are also entitled to additional compensation for their noneconomic damages, such as loss of enjoyment in life, pain and suffering, loss of consortium (companionship), and emotional distress.

Legal Elements of a Claim

Essentially, negligence is a lack of ordinary care. In civil court, there are five elements in a negligence case:

  • Duty: In most cases, the legal responsibility is that of a reasonable person under the circumstances. For example, reasonable drivers obey the speed limit, are sober, focus on driving, and so on. In some cases, most notably those involving truck drivers, Uber drivers, and bus drivers, a higher duty of care applies. In non-motor vehicle cases, such as medical malpractice and landowner liability, the industry standard usually determines the duty of care.
  • Breach: Violation of legal duty is a fact issue for the jury, as not all lapses constitute negligence. For example, rolling down a window technically constitutes distracted driving and driving 1mph over the limit is technically speeding, but most jurors would not say that these drivers breached the duty of care.
  • Cause in Fact: There must be a direct connection between the breach and the damages. Lawyers usually call this element “but-for” causation, as in the damages would not have occurred but for the tortfeasor’s (negligent actor’s) action or inaction.
  • Foreseeability: In addition to a factual connection, there must also be a logical connection between the breach and the damages. For example, it is foreseeable that a car crash might injure a pedestrian, but not foreseeable that the doctor will make a mistake during surgery. In some cases, the foreseeability rule is expanded.
  • Damages: While compensation is available for intangible losses as outlined above, the victim must sustain a physical injury because near misses usually do not support damage claims.

If the tortfeasor violated a safety law, such as making an illegal turn or a dog that was not properly restrained on a leash, the negligence per se (negligence “as such”) rule may apply, and the tortfeasor may be liable for damages as a matter of law if the victim establishes cause.

Building a Successful Claim

Victim/plaintiffs have the burden of proof in negligence cases, so they must establish liability by a preponderance of the evidence, which means “more likely than not.” Preponderance of the evidence is the lowest standard of proof that the law recognizes, but nevertheless, the victim/plaintiff must still present substantial credible evidence in order to obtain maximum compensation. Such evidence often comes from:

  • Accident Report: While it is a critical piece of evidence, the police report is often inaccurate or incomplete because in many cases, first responders only conduct a cursory look at the evidence and the reporting officer only hears one side of the story because the victim is dead or seriously injured.
  • Witness Statements: An attorney must get to work quickly in order to reach out to witnesses who, for whatever reason, may not have come forward to first responders at the scene.
  • Surveillance Video: Although there are no more red light cameras in New Jersey, at least for the time being, most intersections are covered by nearby security video, and first responders almost never review this data.
  • EDR: All newer vehicles have an Event Data Recorder that captures important crash metrics, like vehicle speed and steering angle. Due to privacy laws, an attorney usually needs a court order to inspect and download this data.

Beginning in December 2017, large trucks and some other commercial vehicles will also have electronic logging devices that automatically track a driver’s active and down time.

Possible Insurance Company Defenses

Part of building a successful case includes preparation for likely insurance company defenses, the most common of which is contributory negligence.

For example, in dog bite cases, the insurance company almost always argues that the victim provoked the animal into attacking and therefore the animal owner is not legally responsible for damages.

If the judge finds that the victim may have contributed to his or her own injury, New Jersey courts use a modified comparative fault rule with a 51% bar. So, in order to receive a proportional share of damages, the tortfeasor must be at least 51% responsible for the car crash or other negligence event.

There are a number of other technical legal defenses that have limited applicability, including:

  • Assumption of the Risk: This defense comes up quite often in swimming pool drowning cases if the hotel or other commercial business had a “No Lifeguard On Duty” or some similar sign. In short, the insurance company must prove that the victim voluntarily assumed a known risk.
  • Sudden Emergency: Although insurance company lawyers often try to use this defense if the victim was a jaywalking pedestrian, it really only applies in hood fly-ups and other completely unexpected situations.

The last clear chance defense is similar to the sudden emergency defense.

Rely on Experienced Attorneys

Almost all injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Sussex County, contact Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C. We do not charge upfront legal fees in negligence cases.

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