Most-Requested Articles of 2011 . . .

New York 

10) Challenging Wages in Concurrent Employment Cases Post reform.
9) Overview of the New Permanent Disability Guidelines Effective January 2012.
8) When Are "Exotic Performers" not Employees in New York?
7) New York Workers' Compensation settlements.
6) Suicide and Compensation.
5) Applying the "Attachment to the workforce" test to ongoing benefits.
4) Effective Use of video at trial in New York.
3) Applying the Medical Treatment Guidelines to Out-of-state claimant
2) Rejecting Variances Based on Defective Filings.
1) The Medical Treatment Guidelines in Practice.

New Jersey

9) Using Facebook and other Social Media to Nail Frauds in New Jersey.
8) Attorneys' Fee Trends in New Jersey.
7) Reconstructing Wages in New Jersey.
6) Trying a Medical Provider Claim - the Burn Surgeon's Case.
5) Using a "Tie-Breaker" to Resolve a Medical Treatment Dispute.
4) Was It Too Much Facebook or Too Much Work that Killed Cathleen Renner?
3) Using Video at Trial in New Jersey.
2) Penalties for Carrier's Actions in New Jersey and New York.
1) Love and Bullets for Valentines Day.

Longshore and Defense Base Act

5) Initial Reporting under the Longshore Act.
4) Defenses under the Longshore Act.
3) Calculating Wages under the Defense Base Act.
2) The "True Doubt" Rule.
1) New Longshore Rates in Effect.

The workers’ compensation law provides two separate ways for a compensation carrier to obtain reimbursement from the proceeds of a claimant’s third-party settlement:

1. Assert a lien against the recovery for the amount of benefits already disbursed by the carrier. N.Y. Work. Comp. Law § 29(1); or
2. Offset the claimant’s future compensation benefits by the amount of the claimant’s net recovery in the third-party action. N.Y. Work. Comp. Law § 29(4).

Asserting a Lien for Past Benefits Conferred

The workers compensation carrier “shall have a lien on the proceeds of any recovery from” a third party settlement less reasonable and necessary expenditures, such as attorney’s fees. N.Y. Work. Comp. Law § 29(1). The employee may apply on notice to the lienor to the court for an order apportioning reasonable and necessary expenditures including attorneys fees. The court shall apportion such expenditures equitably between the employee and the lienor. Id.

Offsetting Future Compensation Benefits

The carrier must affirmatively preserve its right to offsets, or it may involuntarily waive such right. See Hilton v. Truss Systems, Inc., 82 A.D.2d 711, 444 N.Y.S.2d 229 (3d Dep’t 1981), order aff’d, 56 N.Y.2d 877, 453 N.Y.S.2d 428, 438 N.E.2d 1143 (1982). The claimant’s third-party settlement recovery less the carrier’s lien is credited by the carrier against future compensation payments. The net amount the claimant receives offsets future compensation payments, and no future payments will be made until the credit is exhausted. The carrier may waive the lien or the offset. N.Y. Work. Comp. Law § 29.

SIMPLY THE MOST PRACTICAL, up-to-date and easy-to-understand guide to New Jersey workers' compensation claims. Tackling issues like employee fraud, this book is designed for employers, attorneys, claims adjusters, physicians, self-insured employers and vocational rehabilitation workers.

This guide is written in plain English by New Jersey attorneys and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners.

Updated chapters on OSHA regulations, new "emergent" motions for medical benefits, the Medicare Secondary Payer Act, and HIPAA considerations are included. Available in print here.

The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job - a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed - arguing that the award should have been based on the primary wage only - $3.56 per week - because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments.  Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011). 

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

There may be recession on, but New Jersey's petitioner's attorneys will not be feeling the pinch!  Petitioner's attorneys are moving forward on two fronts to skim more money from the compensation system.

Increasing Fees on Awards.

Attorneys fees in New Jersey are controlled by N.J.S.A. 34:15-64, which states that an attorneys fee must be "reasonable" and can not exceed 20% of the total award.

In practice, the Division issues a memorandum each year that sets a threshold fee. In the past, if a petitioner's attorney wanted to get a bigger fee than the "threshold" he or she was required to present an affidavit of services, detailing exactly what they did to earn that money. In practice, Judges of Compensation nearly always award the maximum fee.

Last year, the "no questions asked" fee threshold was $40,000. For 2012, the "no questions asked" fee jumps to $42,000. Also, under the new practice (effective January 3, 2012), petitioner's attorneys will no longer have to submit an affidavit of services - just make some sort of argument for why they are due an enhanced fee on the record.

New Jersey to reconsider fees on "Voluntary" Compensation.

When an employer knows (with certainty) that an employee has been injured and will suffer some degree of permanent injury (for example, when there has been loss of a limb), a voluntary tender, made at the appropriate time, may be offered to reduce exposure for attorney’s fees when the underlying claim is disposed of.

N.J.S.A.34:15-64 provides (in part):

When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid within 26 weeks from the date of the notification to the employer of an accident or an occupational disease or the employee’s final active medical treatment or within 26 weeks after the employee’s return to work whichever is later or within 26 weeks after employer’s notification of the employee’s death, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid.

There is now a pending proposed amendment to Section 64 which would grant an attorney a fee on this voluntarily tendered payment.

In other words - even where the petitioner did not have an attorney at the time a voluntary tender was issued - if he later retained counsel his attorney would be due a fee on any money already paid to him or her.

As recently as 2005 the Appellate Division affirmed the decision of the workers’ compensation judge to deny the employer the benefit of a reduced contribution to the petitioner attorney’s fee award because the employer’s voluntary tender of disability benefits was untimely when it occurred slightly beyond the twenty-six week period allowed by statute.  In reviewing the statutory history of N.J.S.A. 34:15-64 and viewing that statute together with N.J.S.A. 34:15-16, the Appellate Division concluded that when the NJ Legislature amended this statute in 1979 it intended to create a “bright line” timeframe and set a clear and certain deadline an employer must meet to reduce its contribution to an attorney fee award by invoking the “26-week rule.”  In other words - most voluntary payments to injured workers have been shielded the increased costs associated with attorneys fees - and that may change.

The law has not changed yet - but the proposed legislation change will be discussed in committee on December 8th.

Of course, we will continue to monitor this proposed change and keep you updated on any significant developments.