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Does An Employer Owe Temp Benefits In New Jersey If The Employee Cannot Work One Job But Is Still Working Another?

By on March 4, 2013 in Compensability with 2 Comments

Clients ask about the following scenario frequently: Bob injures his low back working for Company A on January 1, 2013, arising out of and in the course of employment.  He earns $400 per week working 20 hours per week.  Company A pays temp benefits at $280 per week, and the authorized doctor indicates that Bob will be out of work for eight weeks while he recovers from a herniated disc.

Bob also has a second job working for Company B.  He is out of work from that job as well. On January 15, 2013, he goes back to work for Company B where he has also worked for many years, earning $300 per week.  He does not come back to work for Company A because the authorized doctor has not said he is at maximal medical improvement, and the doctor has not approved return to work.

QUESTION: Should Company A stop temp benefits when Bob resumes working for Company B?

There is no published case exactly on point in New Jersey, and there are arguments both ways.  Bob’s best argument is that he has a wage loss from his employment with Company A.  He has worked two jobs for a long time, and the work injury has prevented him from earning $400 per week on the job for Company A.  Even though he can work the job with Company B (because he says it is a less physically demanding job), Bob maintains that he should get temp benefits because he normally earns another $400 per week from Company A.

Company A also has a strong argument based on the statute that it can stop temp benefits on January 15, 2013, when Bob returns to his work with Company B.  N.J.S.A. 34:15-38 states:

To calculate the number of weeks and fraction thereof that compensation is payable for temporary disability, determine the number of calendar days of disability from and including as a full day 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.

Company A argues that Bob was able to resume work on January 15, 2013.  The statute does not say resume both jobs, or resume the former job; it says “resume work.”  Company A contends that he resumed work when he went back to Company B and therefore no temp benefits are due past that point in time.

The case that helps Bob the most may be Tobin v. All Shore All Star Gymnastics, 378 N.J. Super 495 (App. Div. 2005).  In that case, the petitioner, Christine Tobin, was the owner of a company.  She injured her shoulder at work on May 1, 2003.  She received temp benefits until August 5, 2003 when she was released to do light duty.  However, she told the carrier that there was no light duty work and sought continued temp benefits.  She did go to her place of work as the owner and said she supervised operations at the gym at no compensation to herself in her capacity as president. She did not do the bookkeeping and she did not teach gymnastics.  She simply said that she showed up and supervised operations.  Being president of the business essentially involved no physical effort.  The court ruled for petitioner stating, “While she was capable of doing work as president, she was paid only as instructor and was not paid for the period during which she could not perform her duties as an instructor.”  The employer argued to no avail that the business was generating income to petitioner and no temp should be due.

The best case for the carrier is Tamecki v. Johns-Manville, 125 N.J.Super. 355 (App. Div. 1973), certif. denied. 64 N.J. 495 (1974).  In that case an petitioner injured his hand and received temporary disability benefits up to the point that he returned to full-time college.  However, his treatment continued beyond that point, including further surgeries.  The carrier stopped paying temp benefits because it argued that petitioner was essentially working when he returned to college.  The court accepted the carrier’s argument that going to school on a full-time basis was equivalent to working.  It said, “The statute obviously does not contemplate that a petitioner be able to return to the identical employment he was engaged in at the time of a fateful event.”  Therefore, no temp benefits were ordered once petitioner went back to school, even though he continued to undergo further surgery.

When these issues arise, the factors that practitioners should consider are these:

1) Is the treating doctor aware of the return to work for Company B and the nature of those job duties in that second job?

2) Is the second job with Company B essentially sedentary, unlike the job with Company A?

3) Does the second job involve more hours than Company A where the injury occurred?

It will be difficult for a claimant who is injured working a part-time job to make a claim for temp benefits after he or she returns to another job that is full-time in nature.  The reverse situation presents better chances for the claimant where the claimant is out of work for injuries at a full-time job but claims to be able to resume working only a part-time job, particularly if that job involves little, if any, physical effort compared to the job generating the injury.

In time courts will focus on this kind of case scenario because so many people have to keep two jobs now to make ends meet.  For now the stronger argument seems to be that no temp benefits are due once the employee resumes working the second job based on the Tamecki case.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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There Are 2 Brilliant Comments

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  1. Corinne says:

    In case #1 if the Doctor’s note specifically said that Job A he is still not fit to return and Job B he can then i would wonder why the Doctor would distinguish between the two….sedentary or not i would think that if you are out of work on Job A & B due to a medical issue you would not be able to return on one and not the other….or if in this case, if he is allowed to return to work for Job B, then the Doctor should release him to Light Duty on Job A to balance his monetary issues, instead of putting the costs of his being out on both jobs or in the this case the Temporary Disability Benefits.

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