Is an Employee Entitled to Temporary Total Disability Years After They Have Left Your Employ and Their Disability Recurs?


Category: New Jersey

The Superior Court addressed a rather convoluted fact pattern in determining whether an injured worker is entitled to a resumption of their temporary total disability benefits even though they have left the time of injury employer’s employment years earlier. In the case of Ann Marie Soto v. Hoosier Care, Inc., Docket No. A-0507-22 (App. Div. Dec. 11, 2023), the petitioner sustained a compensable injury on April 28, 2018, to her neck, head, back, and shoulder. She received appropriate benefits, as well as an award of permanency on March 17, 2021, which included 15% of the partial total due to an injury to the cervical spine. The question arose whether the petitioner was entitled to a resumption of her temporary total disability benefits in 2022, four years later, when she required cervical surgery.  

In March 2022, the petitioner filed an Application to Review for her prior award on a timely basis. Since that prior award, however, the petitioner had changed jobs and left the second job voluntarily due to her fear of acquiring the COVID-19 virus because she had an immune-compromised child. She enrolled for a semester of courses at Ocean County College and returned to work only to lose that job when the company closed, and then sought and received unemployment compensation benefits. She then became a full-time college student while searching for employment. Subsequent to filing the Application to Review, the petitioner returned for treatment and was advised that she required cervical surgery including a fusion. She applied for both temporary disability and medical benefits. While the employer agreed to provide the medical benefits, they opposed the resumption of temporary disability benefits since the petitioner had not been in their employ for four years and was not currently “out of work” but had been attending college courses.

The Workers Compensation Judge (WCJ) awarded the temporary total disability benefits. The Judge noted the petitioner was both working and going to college at the same time until the job opportunity ended. At that point, she applied for and received unemployment compensation (UEC). While receiving her UEC benefits, she continued to follow up on job opportunities. The WCJ noted that at no time did she ever leave the workforce, but rather was constantly either employed, attending full-time classes, or both, or receiving unemployment compensation. You will recall that to receive UEC benefits, an individual must be ready, willing, and able to work.  

The respondent appealed to the Superior Court, which affirmed the Judge’s decision. The Court noted that the petitioner did not remove herself from the workforce, but either continued to work, attend college, or both. At the time of the petitioner’s application to reopen her prior award, she was still collecting unemployment benefits and searching for work. As a result, the Court concluded that there were wages to replace with the resumption of temporary total disability benefits. In a prior decision, the Court noted that the receipt of unemployment compensation is the equivalent of working/seeking to work and not removing oneself from the workforce. The Court noted that a resumption of disability and the payment of temporary total disability benefits is not tied to ongoing employment with the time of injury employer, but rather it is of no moment that the injured worker has obtained subsequent employment.  

Comment: The fact pattern in this case is unique and complicated. It is a good decision to be aware of and review when faced with the decision of whether to resume temporary total disability benefits years after an award has been entered. The key is whether the injured worker has either continued to work or continued to seek employment. If they are doing neither, then the argument may be successful that the resumption of wage loss benefits would be a windfall or unjust enrichment since it is not replacing wages that would otherwise be earned through the employee’s efforts.


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