Due to the volume of information and the limits of characters permitted this very in depth article needs to be posted in 3 parts, thank you for your understanding,also you will see *(#)* in the reading as there is a comment in the notes section that pertains to the statement made. This can be found in part 4.
Work-Related Accidents and Occupational Disease
Workers compensation cases arise from work-related accidents or occupational disease. Generally occupational disease develops over time due to either repetitive movement, as with carpal tunnel syndrome, or exposure to harmful conditions such as a work place containing asbestos or a stressful environment that can lead to a heart attack or psychological illness. Clients typically realize they need legal representation when a work-related accident or occupational disease causes any or a combination of the following circumstances:
a need for immediate medical care;
an inability to work for a period of time; and
concern about the likelihood of diminished work capacity in the future.
When a client visits a workers' compensation lawyer, the lawyer will check if the accident or occupational disease is "work related," which means arising out of or in the course of employment. A warehouse worker may have job duties that involve heavy lifting, but if he injures his back lifting a package at home, the injury is not work-related, and he is not entitled to workers' compensation benefits. With only limited exceptions, the worker must be at the job and on the job. A carpenter who has an auto accident while driving from home to work is not covered; but if he were injured while driving from one job site to another, he would be covered.
Notice of work-related accidents or occupational disease must be given to the employer within specified time limits or else the worker will lose rights to certain benefits. If an employer, unaware of a work-related injury, is not notified of the injury within 14 days, no benefits are due until notice is given. If the employee fails to give notice within 30 days, and the employer can show he was harmed thereby, no benefits will be due to the extent the employer can demonstrate such harm. Take for example a clerk who cuts her arm while working for an employer who requires all injured workers to seek immediate medical treatment at its medical clinic. The clerk says nothing about it, believing her injury is not serious enough to warrant medical treatment. But twenty days later her arm becomes severely infected, and she is admitted to a hospital for emergency treatment. If the employer can prove that the clerk would have required only minor treatment had notification been given within 14 days, the employer will not have to pay for the worker's hospital bills, time missed from work, and permanent impairment caused by the severe infection. However, if the clerk can prove that a coworker notified the boss immediately, and the boss ignored the situation, or that the boss actually saw the injury or should have known about it, the employer may be ordered to provide all required benefits.
If the employer becomes aware of a work-related accident after 30 days but before 90 days, the employee must show that his failure to notify was due to a reasonable excuse such as fraud, mistake, ignorance of the law, or some other justifiable circumstance. An illiterate employee would find it easier to justify such a mistake than would a lawyer or paralegal employed by a large law firm specializing in workers' compensation defense.
In cases of occupational disease, the employee must notify the employer within five months after she ceased being exposed to the occupational disease, or within 90 days after she knew or should have known the nature of her disability and its relation to her employment, whichever is later. Failure to give notice within this these time frames will bar all compensation. Notice provisions differ from statutes of limitations, which prohibit the filing of lawsuits after specified times. The statute of limitations in cases of workers' compensation is two years after the accident or, in cases of occupational disease, two years after the claimant first knew the nature of her disability and its relation to her employment. An employee who notifies her employer of an injury or occupational disease at the earliest possible time will nevertheless be precluded from bringing a claim if she waits more than two years to file a lawsuit.
Differences Between Workers' Compensation and Personal Injury Law
The workers' compensation system compensates for temporary and permanent disability. It is an administrative system that differs from the civil tort system. In the civil tort system, when a plaintiff sues in Superior Court for a fall or auto accident, he may recover damages for pain, suffering, and loss of quality of life. In the workers' compensation system, however, pain and suffering is not in itself a criterion on which to base an award. Pain and suffering matters mainly to the extent that it prevents the worker from doing his job as he otherwise would, and loss of quality of life is rarely considered outside of the context of the worker's ability to perform his job. The focus of recovery in workers' compensation and personal injury cases may overlap somewhat but also differs. Thus the workers' compensation attorney should ascertain if someone other than the employer is responsible for the accident. If so, both a workers' compensation suit and a civil personal injury suit may be necessary to fully protect the worker's rights. Clients seeking representation for work-related injuries should hire counsel capable of handling both workers' compensation and personal injury matters.*(1)*
The policy behind the workers' compensation system is to compensate regardless of fault. Whereas a plaintiff in a personal injury case must prove the negligence of the defendant, a worker injured on the job may receive benefits without having to prove his employer failed to exercise due care. The New Jersey Legislature, in passing the workers compensation laws, decided it would be unfair and counterproductive to deny benefits to a negligent worker performing his job in good faith.*(2)* Take, for instance, a salesman in the office who, mistakenly thinking his chair is behind him, attempts to sit but falls to the ground and suffers a herniated disc. It makes no difference that this may be his own fault. Under the workers' compensation system, where fault is not in issue, he is entitled to medical treatment, temporary disability benefits, and permanent disability benefits. The Legislature believed that a system that litigates fault would be overburdened with proceedings to determine who is negligent and who is not.
As an administrative system, the workers' compensation system also differs from the civil tort system in the way cases are tried. Personal injury cases are tried in Superior Court, where formal rules of evidence govern the proceeding. Hence at a workers' compensation trial the hearsay rules*(3)* do not apply and documents can be authenticated and introduced with less formality. Workers' compensation cases are tried by judges, instead of by juries as is the case with most personal injury claims that reach trial. The relative informality of workers' compensation trials, however, should not lull potential claimants into thinking they will escape unpleasant matters such as attacks on credibility which are often made by aggressive defense attorneys. The best response to such an assault is a well-prepared witness with claims thoroughly supported by medical and other evidence.
Medical Care and Temporary Disability Benefits
An injured worker is entitled to immediate medical care, but the employer has nearly complete control over this care. This means that the employer will send the worker to doctor or doctors of its choice, not, in most cases, to a personal physician the worker may know and trust. In many cases, the care provided by the employer's doctors is adequate—but not always. If the employer refuses to provide necessary care, or if the care provided is ineffective or too limited, the worker's attorney must file a Motion for Medical treatment, which the court should hear within 30 days.
Injured workers are also entitled to temporary disability benefits,*(4)* which provide 70% of the employee's average weekly wage up to a limit,*(5)* and permanent disability benefits, which compensate for diminished ability to work or complete disability with respect to job performance. Employers who refuse to provide temporary disability benefits can be forced to do so by a Motion for Temporary Disability. Like Motions for Medical Care, these Motions must be heard within 30 days of filing. Employers who deny medical treatment and/or temporary disability benefits will often do so on, among other reasons, the following grounds:
the injury requires no treatment;
the injury is insufficient to cause the worker to be absent from work; and
the injury is not work related but due to a preexisting condition for which the employer is not responsible.
A competent and aggressive workers' compensation attorney will, where appropriate, challenge these employer contentions,*(6)* which are typically supported by the employer's treating doctors. To challenge the employer, the worker's attorney will send him to an independent doctor who can indicate that he needs treatment, explain why, and state that he is temporarily unable to work pending treatment. see pt 2-4 which follows