Injured workers who are out of work more than seven days, at the direction of an authorized workers’ compensation doctor, are entitled to payment of workers’ compensation temporary disability benefits. These benefits are equal to 70% of the worker’s gross average weekly wage at the time of the accident. These benefits are an integral part of the workers’ compensation statute, since they replace wages while a worker is getting medical treatment, and is temporarily unable to work. Unfortunately the workers’ compensation carriers are increasingly terminating worker’s temporary disability benefits improperly.
In the recent case of Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), the court examined the issue of payment of temporary disability benefits. Mr. Cunningham had an admittedly compensable work injury, received medical treatment and temporary disability benefits, and then returned to his same job. Subsequently he was terminated for cause, unrelated to his work injury. A few weeks later the authorized workers’ compensation doctor took Mr. Cunningham out of work, and he sought temporary disability benefits. Since Mr. Cunningham was terminated from his job and not working prior to the doctor advising that he could not work, the issue arose of whether he was entitled to the benefits. The Cunningham court held that the injured worker must demonstrate that he was either employed or had the promise of employment before being entitled to receive temporary disability benefits.
Many workers’ compensation carriers now point to the Cunningham case to wrongly terminate benefits. They take the position that there is a rigid rule in Cunningham — that once a person is terminated from their job they are no longer entitled to benefits. A broad reading of the case, and a review of the recent decisions on this same issue, clearly shows that this rigid rule does not exist. Many workers’ compensation courts have now been faced with issues similar to the one in Cunningham. The courts look at many factors, including whether or not the receipt of temporary disability benefits by the injured worker would be a windfall, and why the worker is currently not working. If the court were to allow the holding in Cunningham to be a rigid rule, the workers’ compensation carriers would routinely fire people and then make the argument that they are no longer entitled to temporary disability benefits. This writer does however warn her clients that they should NOT quit their job while receiving temporary disability benefits, since that act might give the workers compensation carrier the ammunition to terminate their benefits.