Re-opening Workers Compensation Permanent Disability Awards under New Jersey Law
In New Jersey, if a worker is injured in a work-related accident or incident, the injured worker can file a claim petition in the Workers Compensation Court which is a division of the NJ Department of Labor. If the worker receives an award of partial permanent disability, that award can be modified (or “re-opened) to obtain additional disability benefits if disability has increased, subject to certain time and proof requirements.
Here are some basic questions and answers concerning re-opening of a workers compensation permanent disability award
Question #1: What is involved in obtaining additional workers compensation benefits after I receive a permanent partial disability award?
Reopener petitions are filed by claimants seeking more medical, temporary or permanent disability benefits. You will need a copy of the court order awarding you the permanent disability benefits. You can re-open your case more than once if permanent disability increases
Question #2: How long do I have to file a reopener petition?
The claimant has two years from the last payment of disability benefits or the last date of authorized treatment, whichever is later, to reopen the award. This applies even if the permanent disability award has previously been re-opened and an additional award has been made. The first thing to do is consult your attorney to obtain additional authorized medical treatment or an evaluation as to whether you would benefit from additional medical treatment.
Question #3: What is the legal standard to prove entitlement to further permanency payments?
The claimant must show objective proof that his or her condition has materially worsened since the last award. That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Employers or their workers compensation insurance carriers often take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective. The workers employer or their insurance company will likely have a copy of the transcript created at the time of the initial settlement or last award and then compare those complaints with current complaints given by the worker. If those complaints have not changed, there may be no basis for additional compensation. However, if there is objective evidence of a deterioration of the condition or conditions that resulted in the previous award, generally the reopener claim will be considered as viable.
Question #4: How long will the re-opener process take?
The workers compensation courts are very busy, and depending on the venue of your case, once a petition is filed, it can take from six months to several years to resolve the reopener petition. If the claimant is getting authorized treatment, generally the case will not be resolved for at least six to 8 months after the treatment has concluded and the claimant is evaluated by doctors chosen by his attorney and the employer. There is always the possibility that there will be a dispute as to increased disability, or that the current problem is related to the original condition for which partial permanent disability was awarded. In those cases, either the court will hold a trial, taking testimony from the claimant, the evaluation doctors, and if applicable, from other witnesses. Sometimes, to avoid a trial, the claimant and employer will agree on a lump sum award (called a Section 20 settlement) to close out the case, and in those cases, no further workers compensation benefits will be paid in the future, including medical treatment.
Should you have any questions concerning the workers compensation process, please contact Robert E. Goldstein, Esq. of Drescher & Cheslow, P.A. (732) 972-1600.