The workers’ compensation doctor has released me for light duty work, but my employer advises that there is no such work available.
What can I do?
In this situation, if you haven't returned to work and continue to receive authorized medical care for your injuries, you should continue to receive temporary disability benefits for the period of time up to and including the date the authorized health care provider indicates as the date of maximum medical improvement.
The statute which controls temporary disability (N.J.S.A. 34:15-38) provides that temporary disability is to be paid if the petitioner is “unable to continue to work by reason of the accident”, and that the temporary disability continues until the petitioner is so far restored as the “permanent character of the injury will [permit]”. Case law is clear that respondent is required to offer light duty, but if there is no light duty available, respondent is under the obligation to provide temporary disability.
In, Tobin v. All Shore All Star Gymnastics, 378 N.J.Super. 495, 501-02, 876 A.2d 326 (App.Div.2005) (the petitioner, a trained gymnast, during the time period in question was not able to perform her duties as a gymnastics instructor and no light duty was available to her.
All Shore argues that because the petitioner was able to do light work during the period in dispute, she was not entitled to temporary disability benefits under the workers’ compensation statute.
Temporary disability benefits are to be paid from “the day that the employee is first unable to continue at work by reason of the accident ... up to the first working day that the employee is able to resume work and continue permanently thereat,” N.J.S.A. 34:15-38, or until [the employee] “is as far restored as the permanent character of the injury will permit-the determinant date being whichever of these events happens first.” An employee’s ability to do some light work is not a basis for denying benefits when the employee is trained in a skill which she cannot perform because of her injury or when her employer has no light work available.
Although N.J.S.A. 34:15-58 does not contemplate that an employee be physically capable of returning to the identical employment he was engaged in at the time of the accident, Tamecki v. Johns-Manville, 125 N.J.Super. at 359, 311 A.2d 20, we think that the mere fact that the petitioner might have been able to work a few hours at a time at light work should not be a sufficient basis for precluding an award of temporary disability benefits.
It may be that the petitioner was able to perform, and actually performed light duty, but it was the type for which she was not paid as a salaried employee. As in Harbatuk and Cleland, here “[t]he ability for light and intermittent or sedentary work is not inconsistent per se with total disability,” Harbatuk, supra, 211 N.J.Super. at 624, 512 A.2d 537, and “the fact that an individual is capable of working a few hours at a time at light work does not affect the right to temporary total disability payments.” Id. at 626, 512 A.2d 537. Although owner and president of All Shore, petitioner has been employed as a gymnastics instructor and was its most skilled and experienced instructor. While she was capable of doing work as president, she was paid only as an instructor and was not paid for the period during which she could not perform her duties as an instructor. In essence, the petitioner’s specialized training and experience as an instructor established her values to the company and provided the justification for her pay. Moreover, another instructor was paid to replace her.
There is no clear statutory provision that defines what “light duty” most be offered in New Jersey. Therefore, this issue will depend on the facts of your own case.