Do you face this common Worker’s compensation dilemma? The doctor has released you for light duty work, but your company tells you that there is no such work available.
What can you do?
In this instance, if you have not yet returned to work and you continue to receive authorized medical care for your work-related injuries, you qualify to receive temporary disability benefits for the period of time up to and including the date that the authorized health care provider states as the date of “maximum medical improvement.”
The statute which controls temporary disability (N.J.S.A. 34:15-38) says temporary disability is to be paid if the petitioner is “unable to continue to work by reason of the accident.” It goes on to say that the temporary disability continues until the petitioner is so far restored as the “permanent character of the injury will [permit].”
Case law is clear your employer is required to offer light duty, but if there is no light duty available, the company is under the obligation to provide temporary disability.
There is no clear statutory provision that defines what “light duty” must be offered in New Jersey. Therefore, this issue will depend on the facts of your own case. An Example:
- In, Tobin v. All Shore All Star Gymnastics, 378 N.J.Super. 495, 501-02, 876 A.2d 326 (App.Div.2005) the petitioner, a trained gymnastics instructor, states during the time period in question was not able to perform her duties as a gymnastics instructor and that no light duty was available to her.
- All Shore argues that because petitioner was able to do light work during the period in dispute, she was not entitled to temporary disability benefits under the workers’ compensation statute.
The complex Legal Aspects of this example:
- Temporary disability benefits are to be paid from “the day that the employee is first unable to continue at work by reason of the accident … up to the first working day that the employee is able to resume work and continue permanently thereat,” N.J.S.A. 34:15-38, or until [the employee] “is as far restored as the permanent character of the injury will permit-the determinant date being whichever of these events happens first.” An employee’s ability to do some light work is not a basis for denying benefits when the employee is trained in a skill which she cannot perform because of her injury or when her employer has no light work available.
- Although N.J.S.A. 34:15-58 does not contemplate that an employee must be physically capable of returning to the identical employment he or she was doing at the time of the accident, Tamecki v. Johns-Manville, 125 N.J.Super. at 359, 311 A.2d 20, we think that the mere fact that petitioner might have been able to work a few hours at a time at light work should not be a sufficient basis for precluding an award of temporary disability benefits.
- It may be that petitioner was able to perform, and actually performed, light duty but it was the type for which she was not paid as a salaried employee. As in Cleland, here “[t]he ability for light and intermittent or sedentary work is not inconsistent per se with a total disability,” Harbatuk, supra, 211 N.J.Super. at 624, 512 A.2d 537, and “the fact that an individual is capable of working a few hours at a time at light work does not affect the right to temporary total disability payments.” Id. at 626, 512 A.2d 537. Although owner and president of All Shore, petitioner has been employed as a gymnastics instructor and was its most skilled and experienced instructor. While she was capable of doing work as president, she was paid only as an instructor and was not paid for the period during which she could not perform her duties as an instructor. In essence, petitioner’s specialized training and experience as an instructor established her value to the company and provided the justification for her pay. Moreover, another instructor was paid to replace her.