Workers' Compensation Judge Continues Temporary Disability Limitations


Workers' Compensation Judge E. Elaine Voyles rejected a worker's claim for temporary disability benefits in the case of Dylan Hulitt v. Farm-Rite, Inc. noting that the employee had reached a medical plateau in 2012, was terminated from employment in 2012 and showed no attempt to obtain employment after that termination. When he was again placed out of work in 2014 due to a recurrence of symptoms from the initial work accident, he was not entitled to receive temporary disability payments. Judge Voyles found that the basis of termination isn't relevant to the Court.

In Hulitt, the employee was in a work-related car accident on March 30, 2012. He was terminated for good cause the next day. Following the accident, he received authorized medical treatment and temporary disability paid by the carrier. He was deemed to have reached maximum medical improvement (MMI) on October 12, 2012.

Two years later, he filed a motion for psychiatric treatment due to post-traumatic stress disorder and sought pain management. An order was entered in 2014 authorizing both. On February 13, 2015, the authorized pain management specialist found that he was temporarily and totally disabled from working. Based on the doctor's report, the worker requested temporary disability benefits.

The employer disagreed and relied on the case of Cunningham v. Atlantic States Cast Iron Pipe Company, 386 N.J. Super. 423(App Div. 2006). In that case, an injured worker received treatment, was terminated for cause and had additional subsequent treatment that would have kept him from work. The Cunningham court noted that, absent a showing of either employment, or attempts to obtain employment, the worker had voluntarily removed himself from the workplace and was not entitled to benefits.

Judge Voyles repeatedly cited Cunningham in her opinion, recognizing that the purpose of temporary disability benefits was solely to provide a work-injured individual with a partial substitute for current wage loss.

The employee in Hulitt argued that he did not voluntarily remove himself from work, but instead would have worked but for his termination, so he should receive benefits. The employer argued there was no evidence of any anticipation of employment or attempts by the worker to obtain employment after he was placed at MMI in 2012, which would not entitle him to benefits.

The employee further argued the applicability of Erin Dorsey v. First Atlantic Federal Credit Union, Docket No. A-1008-06T3 (2008), 2008 N.J. Supra unpublished Lexis 156 as on point and controlling. In Dorsey, the worker suffered a work-related loss on March 16, 2005. She was terminated from her employment for cause on April 6, 2005. Her employer opposed a Motion for Temporary Disability Benefits, arguing that she voluntarily removed herself from the work force. The Dorsey trial judge ordered the employer to pay benefits and the Appellate Judge affirmed in an unreported decision.

Judge Voyles noted distinguishing factors in Dorsey that did not come into play with Hulitt. In Dorsey, the claim for temporary disability benefits was made before the employee ever reached MMI. In Hulitt, the worker was found at MMI, made no attempt to find employment and went out of work again. A further distinguishing feature in Hulitt was that the worker had already received temporary benefits once, while in Dorsey the benefits were denied from the outset.

In the Hulitt case, Judge Voyles found of utmost importance that "the basis for his termination is not relevant to the Court. In order for the petitioner to prevail in his application for temporary disability benefits, he must prove an actual loss of income."

Comment: Therefore, Hulitt reaffirms the Cunningham rationale. In order for the petitioner to be entitled to a resumption of wage loss benefits after being separated from employment the employee must prove he or she was actively seeking employment when the disability recurred. Otherwise, there are no wages to replace.

For more information, please contact Joseph W. Borucki at or 856.667.5807.

back to top