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Newsletter -
Winter 2006
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In the recent case of Ferguson v. Pediatric Services of America, the Appellate Division visited the issue of temporary disability benefits and how the rate thereof should be determined. In that case, the petitioner was hired as a
part-time registered nurse. However, for sometime prior to the date of the injury, she had been working full-time with a particular patient and had agreed to continue to work full-time in the care of this particular patient for the
life of the patient, which was an undetermined length of time. Apparently, if the Average Weekly Wage was based on the wages for the 26 weeks prior to the injury, the rate would be low, since petitioner’s period of part-time work would be figured into the calculation of temporary disability. The court noted however, that since the petitioner had begun working full-time and was working full-time on the date of the injury, temporary disability payments must be based on her full-time wage. This ruling interprets the statutory language of N.J.S.A. 34:15-37, which requires that the temporary rate will be based on the wage of the injured worker at the time of
the injury. The only circumstances in which a 26-week wage statement should be used to determine the rate is when the wages earned each week fluctuate due to overtime or hours that consistently fluctuate due to the nature of the job or the output of the employee. A similar situation arises when an employee receives a raise in wages and has an accident shortly thereafter. Although a 26 week wage statement would show an Average Weekly Wage less than the current wage, the Statute is clear that the temporary disability rate must be based on the wage earned at the time of the accident. This case illustrates the value of properly calculating benefits early in a claim and, by doing so, avoiding conflict and, potentially, avoiding an eventual claim for permanent disability. In our experience, we have too often come upon the situation where a claimant is really not interested in pursuing a claim, but due to a mistake in payment of benefits, either temporary disability or medical, he or she contacts an attorney and ultimately files a full-blown claim, including one for permanent disability. Thus an effort to deliver accurately calculated benefits could potentially save significant expenses down the line. If there is doubt as to the legally correct method of calculating temporary disability benefits in a particular case, our office can effectively advise the claims adjuster at this critical early stage of the claim.
– Harry McDevitt, Esq
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