Fall Workers’ Compensation Updates – New Jersey

Fall Workers’ Compensation Updates – New Jersey
By Charlene Stewart Barnaba.

Covid-19 Presumption for Essential Workers

We previously reported that there was a proposed Bill in the Legislature which intended to create a rebuttable presumption that all COVID-19 infections contracted by essential employees were work related. There has been a development on the pending legislation. On September 14, 2020, New Jersey Governor Phil Murphy signed Bill S2389, which creates a rebuttable presumption that COVID-19 infections contracted by essential employees during the New Jersey Public Health Emergency are work related. Essential workers are defined as public safety officers, first responders, a variety of healthcare workers including emergency transportation, and also anyone who performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare. This includes anyone who provides transportation services, hotel and residential services, financial services, and employees involved in the production, preparation, sale and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home.

There is broad language to apply as well to employees deemed to be essential by public authorities declaring the State of Emergency. State employees who are offered to work from home, but decline, are exempted. The presumption can only be rebutted by clear and convincing evidence by the respondent employee/carrier that the employee was not exposed to the disease at work. The law goes into effect retroactive to the March 9, 2020 declaration of the State of Emergency. The law does not apply after lapse or revocation of the State of Emergency, at which time those essential workers will have their cases heard with the burdens of proof in traditional occupational claims. The broad definition of “essential workers” reins in a large multitude of employees and will present a financial hardship for employers and carriers. The application of the law is limited to the duration of the State of Emergency. Currently, New Jersey remains under a Medical State of Emergency under Executive Order 103 through at least November 23, 2020. Please note that there are no presumptions of permanent disability and/or degree of permanent disability for essential workers.

Hand and Foot Law

Legislation was passed on January 21, 2020 providing additional compensation benefits for hand, finger and foot injuries. The law provides for an increased number of weeks of permanency benefits to these body parts, and with additional enhancement for disability levels beyond 25% loss of function. A pending issue remained as to the retroactivity of the Act. Does this law apply to dates of injury prior to January 21, 2020? Does this law apply to Claim Petitions filed prior to January 21, 2020? Does this law apply to cases which have been settled prior to January 21, 2020? It was expected that legislation would be introduced to clarify the retroactive effect of the Act and that we would have Division directive and/or revised OSCAR update to provide clarification. With the pandemic, answers to these questions were delayed; however, A4134 passed on September 24, 2010 by the Assembly and Senate specifically on the issue of the retroactive effect of PL2019 c387.

The Act clarifies that the Hand and Foot Law would not apply to cases that are subject to a Re-Opener Petition. The Act shall apply to cases which have not yet been adjudicated by a Judge of Workers Compensation or approved for settlement on or after the date of enactment of PL2019 c387. The law applies to cases pending, but not yet settled, or filed on or after date of enactment. The language of the amendment is cumbersome; however, the interpretation is that the law applies to any claim which was open and not yet settled before January 21, 2020. Cases settled after January 21, 2020 are subject to the enhanced benefits (with possible revisions of settlement orders which took place between January 21, 2020 and the passing of this amendment). Claim Petitions filed after January 21, 2020 are clearly subject to the new law. We expect that the Division may issue an advisory on this issue,  and OSCAR will be updated to provide the new calculations for permanency awards for these body parts.

Should you have any questions, please call our office at (914) 703-6300 or contact:

Charlene Stewart Barnaba, Partner

Peter M. Dunne, Partner

Jeffrey T. Miller, Executive Partner