In Cunningham v. Atlantic States Cast Iron Pipe Co., the Appellate Division decided a case wherein it ruled that an employee, in order to obtain temporary disability benefits, must prove that “ but for the disability he would have been employed”.
Cunningham had commenced employment with Atlantic States in 2001. He was involved in an accident at work on October 21, 2003 wherein he sustained a torn medial meniscus for which he obtained surgery. The injury was deemed compensable and authorized treatment provided. He was initially returned to work on light duty and then to full duty as of January 23, 2004.
There was a policy present at Atlantic States that allowed for termination of an employee who inexcusably failed to report to work for three consecutive days. Mr. Cunningham had two episodes wherein he failed to report to work for the required period both due to incarceration. Each time, November 2003 and January 2005, his employee union negotiated on his behalf and he was able to return to work with a one-year probationary period. On his return to work after the second incident, on February 3, 2005, he was forced to leave due to childcare issues and he never returned or made efforts to be reinstated.
On February 11, 2005, Mr. Cunningham was examined by his workers’ compensation treating doctor, through his own initiative, and received a note keeping him out of work until August 1, 2005 because of the injury to the knee. A motion for medical and temporary benefits was filed and the Judge of Compensation decided that “ temporary disability benefits were available because the claimant was incapacitated and had not taken himself out of the labor market”. It was from that decision that the appeal was taken.
N.J.S.A. 34:15-38 states that temporary disability benefits are payable from the day that the employee is first unable to work because of the injury until the employee “ is able to resume work and continue permanently thereat”. It is further required that an employee actually be absent from work in order to receive temporary disability benefits. Calabria v. Liberty Mutual Insurance Co., 4 N.J. 64, 68 (1950).

In this case the circumstances by which the employee separated himself from employment was the focal point. It is well established in case law that an employee is not entitled to temporary disability benefits once the employee voluntarily removes himself from the “ workforce”, i.e., retirement or full time student, because there exists no current wage loss attributable to the injury.  The question then arises as to what should happen when an employee does not completely remove himself from the workforce/labor market?
The Court in this case held that at issue is not the distinction between voluntary termination or an employer’s termination by cause, but whether the employee suffered a current and/or actual wage loss. In order to establish same, the “claimant has the burden of proving not only that he was available and willing to work, but that he would have been working if not for the disability”. This is of significance because as long as one seeks employment and a prospect of work is demonstrated, even if unemployed, entitlement to disability benefits can be established if the unemployed status is due to the disability. Such a decision will have a far reaching economic impact.

-Nasim Oloomi, Esq.