IN NJ WORKERS COMP PAID MY BILLS AND OFFERED ME A SETTLEMENT.I DONT THINK IT'S ENOUGH.CAN I TAKE THE OFFER N SUE FOR PAIN/SUFFRN

Asked over 2 years ago - Eatontown, NJ

I WAS HURT DRIVING A BUS. I TORE SOME LIGAMENTS AND REINJURED MY ARM/ELBOW OVER AND OVER AGAIN THROUHOUT THE YEARS. I FINALLY HAD SURGERY ON MY ELBOW/HAND. MY ARM/ELBOW/HAND STILL HURT TO THIS DAY. IM NOT ABLE TO THE THINGS I USED TO. CAN I SUE FOR PAIN AND SUFFERING EVEN THOUGH I TOOK THE OFFER? MY CASE WILL STAY OPEN FOR 2YRS.

Attorney answers (6)

  1. Marc Harlan Herman

    Contributor Level 5

    1

    Lawyer agrees

    Answered . New Jersey Workers Compensation law does not provide for compensation in the form of "pain and suffering" Rather, we see limitation based upon "functional loss." A functional loss assessment is how NJ determines your compensation for you inabiilty to perform tasks at work or in daily living.

    From your question where you state "my case will stay open for 2years" you indicate that you have a formal claim pending: If you have filed a formal Workers Compensation claim, then your proposed settlement will be subject to approval of the court. At that time, the Court will ensure that you understand the terms of the settlement and hear your complaints to determine if the settlement is fair, just and reasonable. You do not have to accept a settlement, but rather may proceed to trial if you choose and allow the Judge to make the decision. But know that if you do proceed to trial, you could get more than the proposed settlement, less than the proposed settlement, the same as the proposed settleemtn or perhaps nothing at all.

    (If you have not filed a claim, and the money that you are referring two is a Voluntary Tender, you must also be careful as there is a 2 year time limit on the filing of a claim. If you do not file a claim and more than 2 years from the accidnet has passed, you may very well be out of time to file.)

    As you have been advised already you would have 2 years from the last provision of compenstion, that includes payment of permanency, to seek additonal benefits from the Workers Compensation Divison if your condition substantially worsens. You must be very careful to keep track of the 2 year period. If you do not seek additonal benefits within 2 years you may be precuded from doing so. You should seek legal counsel during this 2 year period if you think that you may need additonal medical, temporary or permanency benefits.

    You should understand from the above comments that Workers Compensation law in New Jersey is complicated. The above comments are of a general nature and are NOT to take the place of legal advise that is specific to your concerns.

    If you have not already done so, you should consult with an attorney immediately particularly as there may are time limitations on Workers Compensation Claims in NJ.

  2. Andrew Allen Wenker

    Contributor Level 4

    Answered . In addition to the good advice already provided I wanted to add you may have a claim for pain and suffering if the accident was caused by somebody other than your employer or someone employed by your employer. For instance, you may have a claim for a personal injury action if your injury was caused by a driver not employed by your employer colliding with your bus. However, the statute of limitations is only two years from the date of accident in New Jersey. Your question seems to indicate that the injury occurred more than two years ago. If you were represented by an attorney and no complaint was filed within the two years you may have a malpractice action against your attorney.

  3. Frank T Lazzaro

    Contributor Level 8

    Answered . It depends. It will depend on what the nature of the last settlement or order was with respect to the workers compensation claim. When you bring a workers compensation claim, you are not suing for "pain and suffering." Rather, you bring the claim for a work-related disability. If your doctor finds that you have a certain level of permanent disability related to a workplace injury, you may be entitled to an award.

    These cases are very fact sensitive. If you would like to discuss, feel free to contact me. Good luck.

  4. Adam Mark Kotlar

    Pro

    Contributor Level 5

    Answered . New Jersey workers compensation does not specifically provide for pain and suffering awards. The benefits that you may be considering is for a permanent partial disability related to your arm, elbow or hand. From your posting, it appears as though you have accepted a proposed settlement offer. If that is the case, then you would be going to court to appear in front of a Judge of Workers Compensation so that the settlement offer and acceptance can be approved by the court. All settlements on workers compensation cases in New Jersey require court approval. Assuming that your case has settled for an agreed upon percentage of permanent partial disability to the affected body part(s), then your two-year right to reopen your case statute of limitation would begin to run from the time that you receive the last payment of benefits under that agreed-upon settlement.

    In the event you are not clear about the difference between a pain-and-suffering award, which would be applicable to a personal injury case, and a functional impairment award for permanent partial disability, which would apply to workers compensation case, you should review that matter in great detail with your workers compensation attorney if you have one. If not, and you have additional questions, please respond and I would be happy to try to assist you in greater detail.

    I wish you the best of luck with your situation.

    Adam

    Adam M. Kotlar Personal Injury - Workers Compensation - Real Estate - Estate Planning... more
  5. Pamela Jean Johnson

    Contributor Level 4

    Answered . Dear Bus Driver,

    Unfortunately, the NJ law of workers' compensation does not allow injured workers to sue for pain and suffering. The law recognizes only your loss of function. When you were in court you testified about your injuries and how they impair your ability to work and go about the activities of your daily life. The Judge approved your settlement award after hearing your testimony.

    If your condition becomes worse, you should consider filing papers with the court to re-open your case. You may need more treatment, including another surgery. Whether or not you receive more treatment, you may receive an increase in your award.

    I urge you to discuss this with an attorney before your two years pass. Once two years have passed from the date you recieved your award, you cannot re-open this case. This means that you will not receive any of the additional benefits to which you may be entitled.

    Pamela J. Johnson

  6. Andrew Daniel Myers

    Contributor Level 20

    Answered . Workers compensation and lawsuits in court are two different things. Workers compensation includes specific benefits specified in state statutes. But, 'pain and suffering' is not one of them. It is highly adviseable that you have a workers compensation attorney review the claim to be certain that your recovery is optimized.

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