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Partial Permanent Disability

  • By: Lisa Mickey
  • Published: September 25, 2020

Your attorney cannot move forward with a settlement of your claim until you have completed curative medical treatment (in other words – additional care is not going to make you better). Once a physician determines that you have reached maximum medical improvement (“MMI”) from treatment, the next phase of your workers’ compensation claim then begins the process of establishing your permanent disability rating.

This phase of the case is often the most difficult financially for the employee who has sustained significant injuries and is unable to return to the workforce. Unless it is absolutely clear that you are totally, permanently disabled, there will be a delay between the time you last collect temporary disability benefits, and when the carrier starts payment of permanent disability benefits.

What Is A Permanent Disability?

The New Jersey Workers’ Compensation Act defines a “permanent disability” as follows:

. . . A permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. . . .” N.J.S.A. 34:15-36.

Accordingly, you may be entitled to receive an award of partial permanent disability benefits if you suffer from a loss of function, even if you returned to work at the same job.

What is the Process for Determining Permanent Disability?

In order to establish your permanent disability level, you will be examined by “independent” medical experts familiar with the New Jersey workers’ compensation schedule. The insurance carrier may insist upon waiting six months from the date you are released from active medical treatment to schedule you for a permanency evaluation with its medical expert. The carrier might want to delay scheduling a permanency evaluation to give your body further time to heal and improve function. The claims adjuster will also need time to collect your medical records to provide them to the medical expert.

The workers’ compensation insurance carrier may never schedule you for such an examination if you are not represented by an attorney, since the carrier is not required to pay you partial permanent disability benefits. In fact, the vast majority of people who are hurt at work never take advantage of collecting permanent disability benefits since they return to work and the insurance carrier never advises them that they may be entitled to a permanency award. Accordingly, to ensure that you receive a fair award of permanent disability benefits, it is crucial for you to retain a competent workers’ compensation attorney.

If you are represented by an attorney, you will be scheduled for permanency evaluations with experts retained by both your attorney and the insurance carrier. There are a limited number of workers’ compensation experts in the State of New Jersey who are familiar with the workers’ compensation disability ratings system. Accordingly, you may need to travel across the state to attend these examinations.

The medical experts on both sides will exaggerate and usually have widely divergent opinions regarding your level of disability. For example, it is common for the injured workers’ expert to evaluate a disability at over 50% partial total, while the carrier’s expert finds zero disability. When both sets of reports have been completed, they will be utilized to negotiate a settlement of your partial permanent disability claim.

If I Live Out of State Now Am, I Required to Return to New Jersey to Attend Permanency Exams?

You are not required to remain in the State of New Jersey to pursue a workers’ compensation claim. However, before moving out of state, you should keep in mind that you must return to New Jersey to be evaluated by medical experts who are familiar with the state disability schedule, if you wish to be compensated for your permanent disability. The insurance carrier is not required to cover the cost of you to travel back to the state.

What Is the Cost Associated with Attending a Permanency Examination?

The Workers’ Compensation Act currently provides that medical experts retained by injured workers may charge a maximum fee of $600 for an examination and report. This capped fee has discouraged many physicians from conducting workers’ compensation examinations. The insurance carrier bears the cost of the examination and report of its own medical expert. There is no cap placed on the amount an insurance carrier may spend on its medical experts, who may charge thousands of dollars for an examination and report. Attorneys representing injured workers, including the author, continue to lobby the state legislature to reverse this inequity.

Most medical experts who perform examinations on behalf of injured workers represent Petitioners exclusively. Some of these experts will wait for their fee to be paid until a settlement is reached on the claim, while others require their $600 fee to be paid at the time of the appointment. If you are out of work and unable to afford the expert’s fee, you should ask your attorney to pay the upfront fee, with the understanding that she will be reimbursed at the time of settlement. However, if you are back to work, there are many attorneys who expect their clients to have some “skin in the game,” by covering this cost, given that the attorney works without payment until a settlement is reached.

What Should I Bring to the Permanency Examinations?

It is the responsibility of the insurance carrier to provide copies of your medical records to their expert, and your attorney should likewise send all records to the petitioner’s expert in advance of the appointment. Accordingly, there is usually no need for you to bring extra copies unless your attorney directed you to bring new records, she was unable to obtain in time for the appointment.

It is important, however, to bring all of your x-rays and/or MRI films of the injury with you to the examinations. If you had a pre-existing injury, you should also bring any prior films with you to the appointment, for the expert to compare. If you fail to bring the MRI films with you to the appointment, the results of the examination may be inconclusive, or the expert’s opinion may be easily undermined. If the expert does not have the benefit of the MRI films, you may need to deliver them after the exam and incur the cost of a supplemental report from your own expert. A settlement of your case will also be delayed if you fail to bring the films with you to the permanency examinations.

If you have a difficult time recalling the names of the medication you are taking for your injury, it is advisable to either make a list of them or bring the medications with you to the permanency examinations. Even if you are not currently taking prescription medications, you should tell the experts how often you take over-the-counter pain relievers.

If you do not speak English, or if you have a heavy accent and it may be difficult for the doctor to understand you, then you should bring an interpreter to the examination. You may also bring a loved one or friend for “moral support,” and to be a witness to the examination by the insurance carrier’s expert, which could be beneficial if a Trial is necessary in your case.

How Should I Prepare for My Permanency Examinations?

Prior to your appointment, you should give some thought to your physical complaints and limitations. Since you will only have a limited opportunity to communicate with the doctor, you should be prepared to succinctly explain your pain to him, and what activities you are unable to engage in due to your injuries.

Some insurance carrier experts will provide you with a history form to complete at the time of the appointment. It is inappropriate for the expert to require you to complete any form without the assistance of your attorney. Many attorneys require the form to be produced in advance of the appointment, to assist you in completing it. If a form is first provided at the time of the appointment, you should complete only the general information and contact your attorney’s office for further instructions.

You should have your route to the examinations mapped out, and make sure to arrive at your appointments early to check in. It is not uncommon for injured workers to wait months for an appointment with one of these medical experts. Accordingly, do not lose your appointment slot by failing to appear for the examination on time. Although it is important to arrive on time for these appointments, there is often a long wait to see the doctor. Unfortunately, these experts are often over-booked, leading to lengthy waits by patients.

Why Is It Important to Provide a History of The Accident and Medical Treatment If the Expert Has My Medical Records?

Most medical experts rely upon a staff member to obtain a history of the accident and medical treatment from you. You should be prepared to briefly explain how your injury occurred, focusing upon the physical impact to your body, as opposed to the events leading up the accident. For example, if you fell 10 feet off a ladder, spend your time explaining which part of your body impacted with the ground, rather than what caused you to climb the ladder in the first place.

Although your medical records should have been forwarded by the insurance carrier or your attorney in advance of the examination, you should still be prepared to recite a general history of the medical treatment you received following the accident. You do not need to have the date of every appointment memorized. However, you should know the date of any surgeries you underwent, as well as how many weeks you had physical therapy, and the number of injections you tried before resorting to surgery, or any other medical procedure. The expert will also want to know how long you were out of work following the injury. It is important to provide this information in the event that the medical records which the carrier provided to your attorney were incomplete.

What Happens During the Actual Physical Examination with the Workers’ Compensation Experts?

The physician’s assistant usually stays in the examination room during the examination, as both a witness and to help the doctor. After you provide a history, the medical expert will may only perform a cursory physical exam. Do not be concerned if the examination is very brief. The estimates of disability provided by the expert are largely governed by the physician’s review of your medical records.

The expert should perform a battery of physical tests on you, to measure your range of motion, strength, and pain levels. You must speak up if you experience any pain during the testing. However, be aware that the expert will be looking for signs of malingering or exaggeration, which will paint you as less credible to the Court. You should leave the drama at home; it is not helpful for you to grimace in pain at the slightest movement if you do not actually feel severe pain. I have seen the complaints of patients with significant injuries be completely discounted by insurance carrier experts because the expert thought that they were “gilding the lily,” by embellishing their injuries. Everyone experiences pain differently. Be yourself – but do not operate under the illusion that you can trick a trained medical expert into believing that your symptoms are worse than they are in reality. You will damage your case if you attempt to put on a show. On the other hand, you will not improve your case by playing the “tough guy,” and downplaying your complaints to the doctor.

You should tell the physician about your limitations at work and home due to the injury. Even if you returned to the same job, performing the same work duties, but with pain, explain that to the doctor. Tell the expert if you gave up any recreational activities, have difficulty sleeping, or performing chores around the house. Estimate how many times a week you must take pain medication, even if it is over the counter medication.

If you had a prior injury, it is crucial for you to disclose it to the medical expert. You should explain what medical treatment you underwent for the prior injury, and how you felt in the days immediately before the subject work accident. If you were fully recovered from the prior injury at the time of the work accident, with no limitations, you must highlight that fact. On the other hand, if you still suffered from occasional pain from the prior injury, explain the degree to which the work accident exacerbated your symptoms.

What Steps I Should Take After the Permanency Examination with the Insurance Carrier’s Expert?

Do not bother complaining to your attorney that the examination was a sham. Rather, while your memory is fresh, you should make notes regarding the insurance expert’s examination. Write down the exact time the physical examination began and ended. Did the expert ignore you when you tried to point out a symptom? What sort of testing was done during the examination? It is common for insurance carrier experts to claim that a Petitioner failed to disclose a prior injury if the carrier neglected to submit any medical records regarding that injury. Be sure to thus make a note of all prior injuries you disclosed at the appointment. If the expert mentions that he did not have the benefit of a particular medical record you should advise your attorney. Send the post-examination notes to your attorney and keep a copy for your own records.

How Many Permanency Examinations Will I Need to Attend?

At a minimum, you will need to attend examinations with two experts – one for the insurance carrier and one scheduled by your own attorney. Depending upon your injury you may need to attend multiple sets of exams. For instance, if you suffered from a fracture, you will be scheduled for examinations with an orthopedist. If you experienced nerve damage due to the accident (i.e.: suffer from numbness or tingling, and underwent an EMG), you should also attend neuropsychiatric evaluations. Neuropsychiatric experts evaluate both neurological deficits, such as those caused by damage to the nerves or a head injury, as well as psychiatric disability arising from depression or anxiety. If you suffer from an occupational pulmonary injury or were diagnosed with cancer-related to chemical exposure, then you will need to be evaluated by an internist. An ENT (ear, nose, and throat specialist) should evaluate you for hearing loss or swallowing difficulties following neck surgery. While they exist, there are few experts who perform permanency evaluations for eye injuries, dental injuries, and urological injuries in New Jersey. Your attorney may recommend limiting the number of exams to those experts who are absolutely necessary to negotiate a settlement of your claim, in order to reduce the expenses which will be deducted from your settlement award.

I Attended Examinations with Both Sets of Experts. Now What?

Do not expect to hear immediate results following the permanency examinations. Some medical experts are so backed up that it often takes over 6 weeks for them to release a narrative report. Many attorneys refrain from even sharing the results of the report with their clients until a settlement offer has been received. You should request to see a copy of the reports though, to make sure that the doctor did not misrepresent your statements during the examination.

What If the Medical Experts Disagree on My Degree Of Permanent Disability?

The medical expert for the respondent (hired by the employer’s insurance carrier) rarely agrees with the level of disability found by the expert retained by the petitioner (hired by your attorney). The experts may even disagree on your diagnosis and its causal relationship to the work accident. Unless you are clearly totally disabled, Respondents’ experts generally find a very minimal disability, if any. One popular expert among insurance carriers believes that only a quadriplegic could be 100% totally disabled, while a paraplegic would be only 50% disabled. By contrast, Petitioners’ experts typically inflate the permanent disability rating. Accordingly, do not panic and assume that your life is over if your own expert alleges that you are 75% disabled. On the other hand, it would not be unusual for an insurance carrier’s expert to estimate your disability at 1%, even when the injuries have had a profound impact on your life.

Your permanent disability level will generally be established somewhere between these opposing estimates of disability. Please see the chapter regarding the settlement for details on the process of reaching a compromise with the insurance carrier to resolve your claim in the Division of Workers’ Compensation. See, Chapter 10.

How is the Dollar Amount of a Partial Permanent Disability Award Calculated?

The amount of your benefits will be based upon the schedule of disabilities in effect in the year in which your work accident occurred. The benefits will vary based upon your wages, up to the maximum rate at the time of the accident, and the number of weeks of benefits available for the injured body part. The number of weeks of benefits to be paid depends upon the body part which was injured. The schedule of disabilities in New Jersey sets forth the maximum weeks which shall be paid for the total loss of a “member” (hand, arm, foot, leg):

Thumb:80 weeks
First finger (index):60 weeks
Second Finger (middle):50 weeks
Third Finger (ring):40 weeks
Fourth Finger (pinky):30 weeks
Great Toe:40 weeks
Other Toes:15 weeks
Hand:260 weeks
Arm:330 weeks
Foot:250 weeks
Leg:315 weeks

 
Thus, if you lost 100% of use of your hand, you are entitled to receive 260 weeks of benefits. If a body part is amputated, a 30% “bonus” will be added to the award.

More commonly, claimants suffer from a partial loss of use of a member, which would be compensated based upon the above schedule. For example, if the Court determines that you lost 50% of the use of your arm, you would be entitled to receive 165 weeks of benefits. If the accident occurred in 2020, a disability of 50% of the arm would be compensated at a rate of $297.82 per week for 165 weeks, for a total gross award of $49,140.

The pathetically low compensation awards paid for injuries to hands and feet is one of the major injustices in the New Jersey Workers’ Compensation Act, in this author’s opinion. I worked with a lobbying group on behalf of injured workers to persuade the New Jersey legislature to increase the rates for extremity injuries. In 2019, the Governor signed an amendment to the law, which increased the schedule of disabilities slightly for all injuries to the fingers, toes, hands, and feet. In addition, for more serious injuries to the hands and feet, the Act now provides that if the loss in function is 25% or greater, the award will be calculated based upon a 300 weeks schedule for hands and a 285 weeks schedule for feet. The chart above references the weeks paid before and after the passage of the “Hand and Foot Bill.”

In addition to scheduling the losses for extremities, the Workers’ Compensation Act provides that the total loss of vision in one eye shall be paid 200 weeks of disability benefits. Total hearing loss is limited to 200 weeks of disability benefits.

There is no separate schedule for “partial total” permanent disability – those injuries outside of the above specific body parts. Injuries to the head, neck, shoulder, trunk, back, internal injuries, and psychiatric injuries are paid in terms of partial total disability. The law provides that a disability which is partial total in nature shall be payable in increments of six weeks of benefits for every percentage point of disability, on a 600-week scale. For example, if you have a disability of 10% partial total you would be entitled to receive 60 weeks of benefits. A disability of 20% partial total would pay 120 weeks of benefits, and so on.

The dollar amount of your partial total award is also dependent upon your weekly rate. Ever since the New Jersey Workers’ Compensation Act has been in effect, with the exception of 2011, the minimum/maximum rates have increased annually. In 2018, the maximum temporary and permanent disability rate is $903/week.

Although the temporary disability rate is 70% of average weekly wages, up to the maximum rate, your permanent disability rate may be much lower, depending upon your level of disability. For example, the first 90 weeks of benefits are payable at only 20% of the state average weekly wage for that year. The rate increases incrementally after 90 weeks of disability, up to the maximum rate, which is 75% of the state average weekly wage for that year. There are a few large “jumps” in the chart, at which point the rate increases dramatically. Settlement discussions often focus upon these thresholds. For example, after 30% partial total, the rates increase from $282.83/week to $418/week, for injuries occurring in 2017. Thus, an award of 30% partial total would equal $52,710.00, while an award of 31% partial total equals $77,748, for a 2017 accident. Generally, most Judges of Compensation will only award over 30% partial total for injuries which were serious enough to require surgical intervention.

A chart summarizing the various disability levels and rates was published by New Jersey Manufacturer’s Insurance, which is used by workers’ compensation attorneys to calculate the amount payable for a specific injury. At the first meeting with your attorney, she may show you this chart to educate you about how your award for permanent disability will be calculated. See, Appendix F (Rate Charts for 2012 – 2018)

In 2007, the Division of Workers’ Compensation rolled out a computer program, referred to as “OSCAR,” which automatically calculates the dollar amount payable to a claimant based upon the year of the accident, wages, and percentage of disability for all types of injuries. The application was published online in 2015 and may be accessed at: https://courtsonline.dol.state.nj.us/OscarCalc.

In order to utilize the OSCAR program to compute the dollar amount of your partial permanent disability award, plug in the year of the accident, your average weekly wage in the year of the accident, and the percentage of disability for each body part injured. If you injured multiple body parts, your disability award will be paid in terms of partial total. Although injuries should be broken down by body part when calculating the dollar value of a claim, keep in mind that the Court will look at your overall level of disability when deciding your level of partial permanent disability. For example, if you injured your hand, leg, and arm in an accident, those multiple injuries taken together will increase your rate of disability. However, if you returned to work with few limitations after an accident involving multiple injuries, the Judge of Compensation would consider it a windfall to combine the full value of each individual injury, if it would exceed your actual overall partial permanent disability level.

How Will My Permanent Disability Benefits Be Calculated If I Suffered From a Prior Injury?

Even if you injured the same part of your body prior to the work accident, you may be entitled to a permanent disability award for your work injury. However, the burden will be on you and your attorney to prove with objective medical evidence that you suffered a permanent disability as a result of the work accident. The respondent is entitled to receive a credit for any “pre-existing functional loss,” if you are awarded permanent disability benefits in connection with the work injury. Technically, once an injured worker demonstrates his overall level of disability, the burden shifts to the respondent to prove the degree of permanent disability which should be attributed to the pre-existing condition.

For example, if you underwent back surgery due to a work injury in 2017, but received physical therapy from a lower back strain in 2010, the Court may award you 25% partial total permanent disability benefits, with a credit of 5% for your pre-existing condition. The dollar amount of such an award would depend upon your wages at the time of the accident. The credit for the pre-existing condition is negotiable, unless you received a prior compensation award for it – in that case, the insurance carrier would automatically receive a credit for the percentage of disability you received in the prior award.

After Being Examined by the Insurance Carrier’s Medical Expert I Received a Check for Partial Permanent Disability Benefits. Is My Case Now Over?

You may receive a check from the insurance carrier after attending an examination by the respondent’s expert, known as a “voluntary tender.” The amount of the tender is generally based upon the permanent disability level estimated by Respondent’s medical expert. For example, if the Respondent’s expert alleges that you sustained a 5% partial permanent disability due to an accident in 2017, the carrier may immediately issue you a check for $7,170.00. You may cash this check without jeopardizing your right to additional benefits. The voluntary tender should be considered an advance on your final settlement or judgment. The value of a claim is generally substantially more than the estimate of the respondent’s expert, so your case will continue after you receive a voluntary tender check.

Insurance carriers will generally only schedule a permanency evaluation if you are represented by an attorney and a Claim Petition has been filed in the Division of Workers’ Compensation. Occasionally permanency evaluations are scheduled by the carrier to discourage the injured worker from seeking the advice of an attorney. Thereafter, the carrier may pay the injured worker a “voluntary” settlement, based upon the degree of disability estimated by the carrier’s medical expert. Unfortunately, unwitting claimants may believe that they have forfeited their rights to pursue the claim further by cashing the check forwarded by the insurance carrier. However, an injured workers’ right to be fairly compensated for his permanent injury cannot be unilaterally limited by the carrier. Rather, a final settlement can only be enforced when it is given the stamp of approval of a Judge of Compensation.

Most claims are worth substantially more than the estimate of the carrier’s medical expert. Accordingly, a carrier’s voluntary tender of a percentage of permanent disability benefits should be considered only a down payment on the ultimate settlement award. If you receive such a check you may cash it, without fear that doing so constitutes a final settlement of your claim. Thereafter, schedule an appointment with a workers’ compensation attorney so that you may obtain the full value of your claim! At the time your case is settled or otherwise resolved, the insurance carrier will receive a credit for the dollar amount it voluntarily paid to you.

Insurance carriers do not issue voluntary tenders to be magnanimous. Rather, their motivation is economical and sometimes vengeful, since the Court will not assess an attorneys’ fee on a “bona fide” voluntary tender, which is issued within 26 weeks of the date you were released from medical treatment. The attorney’s fees will be based upon the net amount you receive on a settlement award, after the carrier receives a credit for a bona fide voluntary tender. Since the insurance carrier pays more than half of the legal fee on accepted permanency claims, the carrier has an interest in reducing the fees of your attorney. Some carriers also use voluntary tenders to punish attorneys who they view as overly aggressive in protecting the rights of their clients. For example, if your attorney filed several Motions for Medical Treatment on your behalf, an unscrupulous claims adjuster may issue a voluntary payment to both reduce legal expenses on the claim, and to retaliate against your attorney for zealously protecting your rights, to discourage her from filing Motions in future claims. Legislation has been proposed to change the voluntary tender rule, so that an attorneys’ fee is based upon the entire award if an advance is made after litigation is started.

For more information on Partial Permanent Disability, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (908) 923-0020 today.

Lisa Pezzano Mickey

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