In cases of dispute between an injured worker and the employer and/or insurance carrier over entitlement to benefits, the worker may file either a formal Claim Petition or an Application for an Informal Hearing with the Division of Workers' Compensation. Upon filing, the case will be assigned to a judge and a district office based upon the county of residence of the injured worker, or if the worker lives out of state, the county where the employer is located.
Issues may include compensability of the claim (whether the injury/illness is considered work-related), the type and extent of medical treatment, and/or the payment of temporary disability benefits. Further, a claim petition may seek permanent disability benefits and in cases of alleged job-related death, dependency benefits. Workers are generally represented by an attorney but they may file a claim petition on their own (pro se). An insurance carrier will usually provide a legal defense on behalf of a covered employer. If you are a self-insured corporation, it is required that you or your third-party administrator obtain legal representation to defend your interests.
In cases of dispute, an employee, employer, and insurance carrier can file an application for an informal hearing before a judge of compensation. These proceedings are available as a means of resolving issues without resorting to more involved and lengthy formal litigation. Issues such as the amount of temporary benefits, medical treatment, and permanency benefits can be addressed at this hearing.
The suggestions made by the judge during an informal hearing are not binding on either party and the employee always has the right to file a formal claim petition within the statutory time period. The injured worker also has the right to seek the advice of legal counsel at such proceedings if he or she wishes, but such representation is not required. However, in more complicated cases, particularly where serious substantial permanent injury is alleged, the assistance of legal counsel is recommended.
Upon the filing of an application for an informal hearing, the worker, the employer, and/or their insurance company will receive scheduling information from the Division within a few weeks. Informal claims are typically resolved within the first or second hearing.
Please note that the filing of an application for an informal hearing does not stop the two-year statute of limitations from running.
The injured worker also has the option of filing a formal claim petition with the Division, within the statutory time period. The first hearing before a judge of compensation is typically held within six months from the date of filing. Cases are usually assigned to a district office by either the county of residence of the injured worker, or if the worker lives out of state, the county where the employer is located.
The vast majority of claim petitions are settled by mutual agreement as to the amount of benefits due and extent of disability. If the issues cannot be resolved during the pretrial stage, trial commences with the taking of testimony of the injured worker, medical and lay witnesses. At the conclusion of trial, the judge renders a decision based upon the relevant evidence surrounding the case. Their rulings are binding and are appealable only to the Appellate Division of the Superior Court.
To download a claim petition form, click here.
The law also provides immediate recourse to the worker in need of prompt medical treatment and temporary benefits. In such instances, the worker may choose to file a "Motion for Medical and Temporary Benefits" which is assigned an initial hearing date before a Judge of Compensation within 30 days of filing.
To download a Motion for Medical and Temporary Benefits form, click here.
Legal representation in such instances is not required but it is recommended. Attorneys are prohibited by law from charging a fee in advance for legal services. Legal fees can only be awarded by a judge of compensation and only if a compensation award is made. The fees are usually limited to 20% of the awarded judgment, payable by the injured worker and the employer and/or insurance carrier.
If you would like to file a formal claim petition and you do not have an attorney, you may get a referral from your local Bar Association Lawyer Referral Service.
There is a two-year statute of limitations that applies to Workers' Compensation cases. A formal claim petition must be filed within two years of the date of injury or the date of last payment of compensation, whichever is later. Medical treatment authorized by the employer is considered a payment of compensation. In cases of occupational illness, such as asbestosis, lead poisoning, or hearing loss, the claim petition must be filed within two years from the date the worker first became aware of the condition and its relationship to employment. Please note that the filing of an application for an informal hearing does not stop the two-year statute of limitations from running.