In thousands of cases each year in New Jersey, injured employees are taken out of work by treating doctors who conclude that the employee cannot safely perform work duties during the period of recovery from the work injury.  When this happens injured workers receive 70% of their pay tax free but subject to the annual maximum, which is now $1,131 per week for 2024.  These benefits are referred to as temporary disability benefits to replace lost wages.  Municipalities generally provide full salary by collective bargaining agreement, and full salary payments are quite often much higher than $1,131 per week.
 
Making an offer of light duty is almost always a very good idea because it keeps the employee in the workplace and provides a faster recovery, but light duty is not always possible with certain kinds of injuries or jobs.  Some injuries are just too severe to accommodate on light duty, or there simply is no light duty for certain jobs.  When someone is out of work for a long time, reports may circulate from co-employees that the employee has ramped up his hours on a second job, or that he is very active in sports or exercise at the gym.  This information may lead employers to wonder if the employee should return to work.  This blog focuses on what employers should do when an employee appears very active while remaining out of work related to a work injury.
 
Reports from reliable sources about high levels of activity need to be conveyed to the claims adjuster.  For example, co-employees see an employee, who is out of work with a back problem, bench pressing 250 pounds of weight several days a week in the gym, or it becomes well known that an employee is now working 40 hours per week on a second job while out of work.  What should be done?  The individual who oversees the workers’ compensation program for the municipality needs to relay this information to the workers’ compensation claims adjuster.  Surveillance will often be assigned to verify the reports.  The treating doctor will also be notified.  These kinds of observations are important because someone who is very active physically may well have reached maximal medical improvement, which means temporary disability benefits must end.  Doctors only know what they are told by the injured employee as to limitations of activity, and doctors welcome relevant information provided by the adjuster and employers.
 
Many clients have asked me how Judges of Compensation view appropriate activity levels for employees who are out of work collecting temporary disability benefits.  Judges think that someone who is out of work during a period of recovery should be able to some simple things, like drive a car to the store or go shopping or perhaps take out the trash cans.  These are usually not very physically demanding activities.  On the other hand, judges will pay close attention to arguments of dishonesty or fraud that defense counsel will make.  The judge will likely dismiss a case where an employee is proven to be bench pressing hundreds of pounds while remaining out of work with a low back problem.  Most judges consider this sort of evidence to amount to fraudulent conduct because one cannot have a serious back problem if he is lifting hundreds of pounds on his back.  Surveillance videos can be extremely helpful in proving the elements of a successful fraud motion.
 
Doctors also need to be brought into these situations.  The adjuster may contact the treating doctor and inform the doctor of the high level of activity that the employee is engaging in while allegedly being unable to work.  Video surveillance may be sent to the treating doctor.  When presented with this sort of contradictory information, the treating doctor will often discharge the employee from care right away.
 
What about employees who have two jobs?  Does the receipt of temporary disability benefits for an injury on the municipal job mean that the employee cannot work the part-time job?  When it comes to working a part-time job while being out of work on a municipal job, there are not many published cases to fall back on in New Jersey.  Judges realize that many public and private sector workers have two jobs.  New Jersey is a very expensive state to live in.  The first question the judge will ask is how physical is the job at the municipality and how physical is the second job?  For example, if the employee works in the planning office for a municipality and is out of work for a hand injury but is found to be now working 30-40 hours per week at a convenience store, doing manual work, the employer will terminate temporary disability benefits.  The judge will likely support the employer’s decision in this situation because the employee is using his or her hand at the second job, which would indicate that the employee should be working the municipal job.  Before that issue even gets to a judge, the treating doctor will likely be notified by the adjuster of the activities on the second job.  The doctor may issue an MMI note based on this information.  MMI in New Jersey stops medical and temporary disability benefits.  
 
If the second job really involves no physical activity at all – selling real estate or conducting sales online – the Judge of Compensation is not likely to see a contradiction which would justify terminating temporary disability benefits.  Employers will make the argument that someone who can work another full-time job should not be receiving temporary disability benefits, but there is no clear published case on this issue.  Some part-time jobs are performed at home with minimal physical activity other than driving or working on the computer.  There are, however, some cases where the doctor has advised the employee not to drive, such as right foot fracture injuries.  If an injured employee is driving for a second job against medical advice, this needs to be communicated immediately to the treating physician.  The reason for the restriction against driving is usually to prevent reinjuring the foot.  The doctor may conclude that the foot has now healed and may return the employee to work or may emphasize again that no driving is allowed. 
 
The most egregious cases are those where the out-of-work employee with an alleged serious back, neck or shoulder problem is found to be working a construction job or doing similar very physical work while out of work from the municipal job.  That kind of activity should be considered fraudulent and also suggests that the work injury is not serious at all.  In one municipal case which I handled, the adjuster identified a red flag because the injured worker never answered her phone calls. The employee was claiming he was in too much pain to answer the phone!  The adjuster became suspicious.  Surveillance was assigned, and the out-of-work employee was filmed carrying a refrigerator on his back leaving a Home Depot for delivery to some customer’s home.  He loaded the refrigerator onto a truck himself and then made the delivery!  Benefits were stopped and fraud charges were filed.
 
Owning a small business and managing paperwork while out on temporary disability benefits may not be enough to stop benefits.  In Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495 (App. Div. 2007), the injured worker had a side business as owner/operator of a gymnastics studio and instructor.  She kept going to the studio while she was recovering from her main job’s work injuries, but she mostly did paperwork there.  She was filmed once spotting for a student but otherwise her activities were focused on non-physical functions like greeting guests and doing paperwork.  She opened the studio in the morning and closed it in the afternoon.  The employer tried to stop temporary disability benefits on the theory that petitioner was actively working but lost.  In this particular case, the Court focused on the fact that the petitioner never paid herself for her gymnastics work during the period of time that she was out recovering from her work injury from her main job.  She also never performed any physical activity in her studio.
 
What if the employee reinjures himself while out of work and receiving temporary disability benefits doing something he was told not to do by the doctor?  Some doctors actually provide an injured worker with a whole list of activities to avoid during recovery. Example: don’t use tools, don’t do repairs, don’t lift anything over 5 pounds, etc.  From a legal viewpoint, our position is that if a doctor tells you what not to do during your recovery and then you do it anyway and reinjure yourself, that second injury is not compensable.  This is the rule in Amey v. Friendly Ice Cream, which is a reported appellate division decision.  In the Amey case the employee received intricate hand surgery for a work injury and then was told not to use any tools with his injured hand.  He went home and a few days later he started working on his car, squeezed a wrench with his surgical hand, and tore all the repaired tendons from his surgery.  The employer did not have to pay for the second surgery to repair the damage caused by using the wrench on his car.
 
 
John H. Geaney,
Capehart Scatchard
For GSMJIF