When you are injured and can return to work but only part time or paid at a lower rate can you recover the differnece until you are released from the authorized doctor as having reached your maximum medical improvement? In 1974, in a case called Tamecki an Appellate Division court dealt with this issue. Mr. Tameki injured his hand and claimed temporary disability benefits from his employer. The benefits were provided, but the insurance carrier stopped paying once he began attending college full-time. The carrier argued that this was akin to returning to work.
Even though Mr. Tameki argued that he would, in fact, still be unable to resume employment in his earlier job, the court held “The statute [on temporary disability workers’ compensation] 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.”
Indeed, the language of the workers compensation statute is quite broad and states: “[F]or temporary disability, determine the number of calendar days of disability…up to the first working day that the employee is able to resume work and continue permanently thereat.”
However, the Appellate Division dealt with a similar case in 2005. A gymnastics teacher injured her shoulder at work. Eventually, she returned to her gym, but did not resume her more physically intensive role immediately. Instead, she engaged in clerical and administrative work. And, unlike the above case, the court held that she was still entitled to temporary disability benefits: “While she was capable of doing [the less physically intensive work], she was paid only as instructor and was not paid for the period during which she could not perform her duties as an instructor.”
A recent post by the N.J. Workers’ Compensation Blog (http://www.njworkerscompblog.com/does-an-employer-owe-temp-benefits-in-new-jersey-if-the-employee-cannot-work-one-job-but-is-still-working-another/) described this seeming contradiction. Indeed, New Jersey courts have yet to resolve the law in this area one way or the other. However, it should be known that a workers compensation judge is not going to penalize an injured worker by making them go back to work part-time and allow them to get paid less than the temporary disabilty rate. If you would like more information regarding workers compensation benefits please visit our site at www.gaylordpopp.com OR call me at 609-246-0669.