A1202

ASSEMBLY, No. 1202

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman DALTON

An Act concerning certain workers' compensation benefits and amending R.S.34:15-12, R.S.34:15-13 and R.S.34:15-95.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. R.S.34:15-12 is amended to read as follows:

34:15-12. Following is a schedule of compensation:

a. For injury producing temporary disability, 70% of the worker's weekly wages received at the time of the injury, subject to a maximum compensation of [75%]80% of the average weekly wages earned by all employees covered by the "unemployment compensation law" (R.S.43:21-1 et seq.)[and a minimum of 20% of such average weekly wages a week]. If the compensation so calculated is less than 50% of that average weekly wage, then the compensation payable shall be the lower of 50% of the average weekly wage or 90% of the worker's weekly wages, but in no case shall the compensation be less than 20% of the average weekly wage. This compensation shall be paid during the period of such disability, not however, beyond 400 weeks. The amount of the maximum compensation shall be computed, determined, rounded out to the nearest dollar, and promulgated by the Commissioner of Labor on or before September 1 in each year based on said average weekly wages as of the calendar year preceding, and shall be effective as to injuries occurring in the calendar year following such promulgation. In any year in which the maximum benefit rate based upon said computation would not be increased or decreased beyond $1.00 in amount, the rate promulgated theretofore shall continue.

b. For disability total in character and permanent in quality, 70% of the weekly wages received at the time of injury, subject to a maximum and a minimum compensation as stated in subsection a. of this section. This compensation shall be paid for [a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident, in which case further weekly payments shall be made during] the period of such disability[, the amount thereof to be the previous weekly compensation payment diminished by that portion thereof that the wage, or earnings, the employee is then able to earn, bears to the wages received at the time of the accident. If the employee's wages or earnings equal or exceed wages received at the time of the accident, then the compensation rate shall be reduced to $5.00. In calculating compensation for this extension beyond 450 weeks the above minimum provision shall not apply. This extension of compensation payments beyond 450 weeks shall be subject to such periodic reconsiderations and extensions as the case may require, and shall apply only to disability total in character and permanent in quality, and shall not apply to any accident occurring prior to July 4, 1923].

c. For disability partial in character and permanent in quality, weekly compensation shall be paid based upon 70% of the weekly wages received at the time of the injury, subject to a maximum compensation per week of [75%]80% of the Statewide average weekly wages (SAWW) earned by all employees covered by the "unemployment compensation law" (R.S.43:21-1 et seq.) and paid in accordance with the following "Disability Wage and Compensation Schedule" and a minimum of $35.00 per week. The amount of awards for up to and including 180 weeks shall remain at the amounts listed in the "Disability Wage and Compensation Schedule" until January 1, 1982. On January 1, 1982, the dollar amounts listed for the first 180 weeks in the "Disability Wage and Compensation Schedule" shall be replaced by the following percentages of the Statewide average weekly wage:

$47-20% of the Statewide $61-26% SAWW

average weekly $63-27% SAWW

wages, hereinafter $66-28% SAWW

referred to as "SAWW" $68-29% SAWW

$49-21% SAWW $70-30% SAWW

$51-22% SAWW $73-31% SAWW

$54-23% SAWW $75-32% SAWW

$56-24% SAWW $77-33% SAWW

$59-25% SAWW $80-34% SAWW

$82-35% SAWW

In the event that the 20% limitation for attorney fees as set forth in R.S.34:15-64 is reduced to a maximum of 10% before January 1, 1982, the above schedule shall be effective within 60 days of such reduction in attorney fees. All amounts in the "Disability Wage and Compensation Schedule" shall be rounded out to the nearest dollar. When a claim petition alleges more than one disability, the number of weeks in the award shall be determined and entered separately for each such disability and the number of weeks for each disability shall not be cumulative when entering an award.

DISABILITY WAGE AND COMPENSATION SCHEDULE

Weeks of Allowable Maximum Weekly

Compensation Compensation Applicable

First 90 weeks . . . . . $47

91 through 96 weeks . . . $49

97 through 102 weeks . . $49 for the first 96 weeks

then $51 for each remaining week

103 through 108 weeks . . $49 for the first 96 weeks

then $51 for the next 6 weeks

Wages of Allowable Maximum Weekly

Compensation Compensation Applicable

then $54 for each remaining week

109-114 weeks . . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for each remaining week

115-120 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for each remaining week

121-126 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for each remaining week

127-132 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for each remaining week

133-138 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for each remaining week

139-144 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for each remaining week

145-150 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

Wages of Allowable Maximum Weekly

Compensation Compensation Applicable then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for each remaining week

151-156 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for the next 6 weeks

then $73 for each remaining week

157-162 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for the next 6 weeks

then $73 for the next 6 weeks

then $75 for each remaining week

163-168 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for the next 6 weeks

then $73 for the next 6 weeks

then $75 for the next 6 weeks

then $77 for each remaining week

169-174 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

Weeks of Allowable Maximum Weekly

Compensation Compensation Applicable then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for the next 6 weeks

then $73 for the next 6 weeks

then $75 for the next 6 weeks

then $77 for the next 6 weeks

then $80 for each remaining week

175-180 weeks . . . . . $49 for the first 96 weeks

then $51 for the next 6 weeks

then $54 for the next 6 weeks

then $56 for the next 6 weeks

then $59 for the next 6 weeks

then $61 for the next 6 weeks

then $63 for the next 6 weeks

then $66 for the next 6 weeks

then $68 for the next 6 weeks

then $70 for the next 6 weeks

then $73 for the next 6 weeks

then $75 for the next 6 weeks

then $77 for the next 6 weeks

then $80 for the next 6 weeks

then $82 for each remaining week

181-210 weeks . . 35% of the Statewide average weekly wages, hereinafter referred to as

"SAWW"

211-240 weeks . . . . . 40% of SAWW

241-270 weeks . . . . . 45% of SAWW

271-300 weeks . . . . . 50% of SAWW

301-330 weeks . . . . . 55% of SAWW

331-360 weeks . . . . . 60% of SAWW

361-390 weeks . . . . . 65% of SAWW

391-420 weeks . . . . . 70% of SAWW

421-600 weeks . . . . . 75% of SAWW

Said compensation shall be expressly subject to the provisions of R.S.34:15-37, and shall be paid to the employee for the period named in the following schedule (paragraphs 1 to 23 inclusive):

Lost Member Number of Weeks'

Compensation

1. Thumb . . . . . . . . . . 75

2. First finger (commonly called index finger) 50

3. Second finger . . . . . . . 40

4. Third finger. . . . . . . . 30

5. Fourth finger (commonly called little finger) 20

6. Great toe . . . . . . . . . 40

7. Toe, other than a great toe. . . . . . . . 15

8. Hand, or thumb and first and second fingers

(on one hand) or four fingers (on one hand). . 245

9. Arm . . . . . . . . . . . 330

10. Foot. . . . . . . . . . . 230

11. Leg . . . . . . . . . . . 315

12. The loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of 1/2 of such thumb or finger, and the compensation shall be for 1/2 of the periods of time above specified. The loss of any portion of the thumb or any finger between the terminal joint and the end thereof shall be compensated for a like proportion of the period of time prescribed for the loss of the first phalange of such member.

13. The loss of the first phalange and any portion of the second shall be considered as the loss of the entire finger or thumb, but in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.

14. The loss of the first phalange of any toe shall be considered to be equal to the loss of 1/2 of such toe, and compensation shall be for 1/2 of the period of time above specified.

15. The loss of the first phalange and any portion of the second shall be considered as the loss of the entire toe.

16. For the loss of vision of an eye, 200 weeks.

17. For the enucleation of an eye, 25 weeks, in addition to such compensation, if any, as may be allowable under paragraph 16 of this subsection.

18. For the loss of a natural tooth, four weeks for each tooth lost. 19. For the total loss of hearing in one ear, 60 weeks. For the total loss of hearing in both ears by one accident, 200 weeks.

20. The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof as the result of any one accident, shall constitute total and permanent disability to be compensated according to the provisions of subsection b. of this section.

21. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand and amputation at the elbow shall be considered equivalent to the loss of the arm. Amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot, and amputation at the knee shall be considered equivalent to the loss of the leg. An additional amount of 30% of the amputation award shall be added to that award to compute the total award made in amputations of body members, provided, however, that this additional amount shall not be subject to legal fees.

22. In all lesser or other cases involving permanent loss, or where the usefulness of a member of any physical function is permanently impaired, the duration of compensation shall bear such relation to the specific periods of time stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule. In cases in which the disability is determined as a percentage of total and permanent disability, the duration of the compensation shall be a corresponding portion of 600 weeks. Should the employer and employee be unable to agree upon the amount of compensation to be paid in cases not covered by the schedule, either party may appeal to the Division of Workers' Compensation for a settlement of the controversy.

23. Where there is a traumatic hernia, compensation will be allowed if notice thereof is given by the claimant to the employer within 48 hours after the occurrence of the hernia but any Sunday, Saturday or holiday shall be excluded from this 48-hour period.

d. If previous loss of function to the body, head, a member or an organ is established by competent evidence, and subsequently an injury or occupational disease arising out of and in the course of an employment occurs to that part of the body, head, member or organ, where there was a previous loss of function, then the employer or the employer's insurance carrier at the time of the subsequent injury or occupational disease shall not be liable for any such loss and credit shall be given the employer or the employer's insurance carrier for the previous loss of function and the burden of proof in such matters shall rest on the employer.

e. In case of the death of the person from any cause other than the accident or occupational disease, during the period of payments for permanent injury, the remaining payments shall be paid to such of the deceased person's dependents as are included in the provisions of R.S.34:15-13 or, if no dependents, the remaining amount due, but not exceeding $3,500.00, shall be paid in a lump sum to the proper person for burial and funeral expenses; but no compensation shall be due any other person than the injured employee on account of compensation being paid in excess of 450 weeks on account of disability total in character and permanent in quality as provided by subsection b. of this section.

(cf: P.L.1990, c.122, s.1)

2. R.S.34:15-13 is amended to read as follows:

34:15-13. Except as hereinafter provided, in case of death, compensation shall be computed, but not distributed, on the following basis:

a. For one dependent, [50%]51% of wages.

b. For two dependents, [55%]60% of wages.

c. For three dependents, [60%]66 and 2/3% of wages.

d. For four or more dependents, [65%]70% of wages.

e. [For five or more dependents, 70% of wages.](Deleted by amendment, P.L. , c. .)

f. The term "dependents" shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease, or at the time of death, namely: husband, wife, parent, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children. Dependency shall be conclusively presumed as to the decedent's spouse and to any natural child of a decedent under 18 years of age or, if enrolled as a full-time student, under 23 years of age, who was actually a part of the decedent's household at the time of the decedent's death. Every provision of this article applying to one class shall be equally applicable to the other. Should any dependent of a deceased employee die during the period covered by such weekly payments the right of such dependent to compensation under this section shall cease, but should the surviving spouse of a deceased employee remarry during such period and before the total compensation is paid, the spouse shall be entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser. The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent, except in the case of the surviving spouse and children who were actually a part of the decedent's household at the time of death, the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support constituted of his total wages and the provision as to [a] the minimum [of 20% of the average] weekly [wage as] compensation set forth in subsection a. of R.S.34:15-12 shall not apply to such compensation. In determining the number of dependents, where the deceased employee was a minor, the number of persons dependent upon the deceased employee shall be determined in the same way as if the deceased employee were an adult, notwithstanding any rule of law as to the person entitled to a minor's wages.

g. Compensation shall be computed upon the foregoing basis. Distribution shall be made among dependents, if more than one, according to the order of the Division of Workers' Compensation, which shall, when applied to for that purpose, determine, upon the facts being presented to it, the proportion to be paid to or on behalf of each dependent according to the relative-dependency. Payment on behalf of infants shall be made to the surviving parent, if any, or to the statutory or testamentary guardian.

h. If death results from the accident or occupational disease, whether there be dependents or not, expenses of the last sickness of the deceased employee shall be paid in accordance with the provisions for medical and hospital service as set forth in R.S.34:15-15. In addition, the cost of burial and of a funeral, not to exceed $3,500 shall be paid to the dependent or other person having paid the costs of burial and the funeral. In the event that the dependent or other person has paid less than $3,500 for the costs of burial and the funeral, the dependent or other person shall be reimbursed in the amount paid and, if the costs of burial and the funeral exceed the amount so paid, the difference between the said amount and $3,500 or so much thereof as may be necessary to pay the cost of burial and the funeral, shall be paid to the undertaker or embalmer or the dependent or other person having paid the costs of burial and the funeral. In the event that no part of the costs of burial and the funeral have been paid, the amount of such cost of burial and the funeral, not to exceed $3,500, shall be paid to the undertaker or embalmer or the dependent or other person who is to pay the costs of burial and the funeral.

i. In computing compensation to those named in this section, except husband, wife, parents and stepparents, and except as otherwise provided in this section, only those under 18 or over 40 years of age shall be included and then only for that period in which they are under 18 or over 40; provided, however, that payments to such physically or mentally deficient persons as are for such reason dependent shall be made during the full compensation period of 450 weeks.

j. The maximum compensation in case of death shall be subject to the maximum compensation as stated in subsection a. of R.S.34:15-12 and [a] the minimum [of 20% of average] weekly [wages per week] compensation as set forth in subsection a. of R.S.34:15-12, except in the case of partial dependency as provided in this section. This compensation shall be paid, in the case of a surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks and if at the expiration of 450 weeks there shall be one or more dependents under 18 years of age, compensation shall be continued for such dependents until they reach 18 years of age, or 23 years of age while enrolled as a full-time student, at the schedule provided under subsections a. to e. of this section.

(cf: P.L.1995, c.185, s.1)

3. R.S.34:15-95 is amended to read as follows:

34:15-95. The sums collected under R.S.34:15-94 shall constitute a fund, to be known as the Second Injury Fund, out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of paragraph (b) of R.S.34:15-12 shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause; provided, however, [that, notwithstanding the time limit fixed therein, the provisions of paragraph (b) of R.S.34:15-12 relative to extension of compensation payments beyond 400 or 450 weeks, as the case may be, shall, with respect to payments from the Second Injury Fund, apply to any accident occurring since June 27, 1923, and in no case shall be less than $5.00 per week; provided further, however,]that no person shall be eligible to receive payments from the Second Injury Fund:

(a) If the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.

(b) (Deleted by amendment.)

(c) If the disease or condition existing prior to the last compensable accident is progressive and by reason of such progression subsequent to the last compensable accident renders the person totally disabled within the meaning of this Title.

(d) If a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.

Nothing in the provisions of said paragraphs (a), (c) and (d), however, shall be construed to deny the benefits provided by this section to any person who has been previously disabled by reason of total loss of, or total and permanent loss of use of, a hand or arm or foot or leg or eye, when the total disability is due to the total loss of, or total and permanent loss of use of, two or more of said major members of the body, or to any person who in successive accidents has suffered compensable injuries, each of which, severally, causes permanent partial disability, but which in conjunction result in permanent total disability. Nor shall anything in paragraphs (a), (c) and (d), aforesaid apply to the case of any person who is now receiving or who has heretofore received payments from the Second Injury Fund.

Upon the approval of an application for benefits, the compensation payable from the Second Injury Fund shall be made from the date when the final payment of compensation by the employer is or was payable for the injury or injuries sustained in the employment wherein the employee became totally and permanently disabled; provided, that no payment from the Second Injury Fund shall be made for any period prior to the date of filing of application therefor; provided, however, that a person who has received compensation payments from the Second Injury Fund and who is reinstated or ordered placed on said fund shall receive payments from the date of last payment from the Second Injury Fund, save only in the case of a person to whom payments have been made and then discontinued or suspended because of [the rehabilitation of such person in accordance with the provisions of paragraph (b) of R.S.34:15-12, or] actual employment for any reason whatsoever, in which case payments from the Second Injury Fund shall be made from the date of filing application for reinstatement. Payments to such totally disabled employees shall be made from said fund by the State Treasurer upon warrants of the Commissioner of Labor. This section shall be applicable to any accident occurring since June 27, 1923, insofar as the eligibility of and benefits payable to such employees of this class is concerned; provided, however, that nothing contained herein shall limit or deprive those persons now receiving or who have received the benefits under this section from participating in the Second Injury Fund. All payments from the Second Injury Fund shall be made by biweekly installment payments. From the fund herein created the Commissioner of Labor may use in any one fiscal year a sum not to exceed the sum of $12,500.00 for the cost of administration of the fund including personnel, printing, professional fees, and expenses incurred by the Commissioner of Labor in the prosecution of defenses in the Division of Workers' Compensation, and of appeals and proceedings for review of decisions on applications for benefits from the Second Injury Fund. No costs or counsel fee for the applicant shall be allowed against the fund.

The Commissioner of Labor shall annually submit an accounting of the fund to the State Treasurer.

All payments into the Second Injury Fund which may have heretofore been made or required at any time or times are hereby validated and confirmed, notwithstanding that at the time of such payment or payments the fund may have equaled or exceeded the sum of $200,000.00.

(cf: P.L.1988, c.26, s.2)

4. This act shall take effect immediately.

STATEMENT

This bill increases the maximum amount of wage replacement benefits which may be received under the workers' compensation law for temporary disability, permanent total disability and permanent partial disability from 75% of the State average weekly wage (SAWW) to 80% of the SAWW.

The bill also changes the minimum amount of replacement wages for temporary disability and permanent total disability by providing that if the replacement wage is calculated to be less than 50% of the SAWW, then the benefit payable shall be the lower of 50% of the SAWW or 90% of the worker's weekly wages, but in no case shall the benefit be less than 20% of the SAWW.

This change in the minimum and maximum amount of wage replacement benefits would also apply to wage replacement benefits received by a dependent or dependents of a deceased worker, including a spouse and children. The bill also changes the amounts of wage replacement benefits granted to dependents in case of the death of a worker by requiring the following: 51% of wages for one dependent; 60% of wages for two dependents; 66 and 2/3% of wages for three dependents; and 70% of wages for four or more dependents.

The bill changes the duration of wage replacement benefits for permanent total disability by requiring that wage replacement continue for the duration of the disability, instead of the current requirement that wage replacement for permanent total disability continue for four hundred and fifty weeks, at which time the injured employee must submit to physical or educational rehabilitation and benefits may continue if the injured worker can show that he is unable to earn wages equal to those earned at the time of the accident.

The changes in the duration and amount of wage replacement payments required by this bill would also apply to wage replacement benefits paid by the Second Injury Fund.

Changes the amount and duration of wage replacement benefits under workers' compensation.