Can an Employee Be Paid Less on Light Duty than the Employee Was Receiving in Temporary Disability Benefits?
New Jersey has a powerful provision allowing employers to terminate temporary disability benefits on an offer of light duty, provided that the offer is made. If it is made, the employee must return to the light duty job or temp benefits will be terminated.
But what happens if the light duty offer involves fewer hours than the employee normally worked and less pay than the rate of temporary disability benefits? There is no published case on this issue but there is a helpful decision in the Division of Workers’ Compensation entitled Soto v. Herr’s Foods, Inc., 2012 NJ Wrk. Comp. LEXIS 4 (September 7, 2012).
Mr. Soto was injured at work on January 29, 2011 and underwent two authorized surgical procedures involving his left knee. In January 2012, the authorized treating physician wrote a report stating petitioner could return to work light duty. “I would like to start light duty and see if we can get him back to work, sedentary, four hours a day, and progress to eight hours.”
The employer made a light duty offer for four hours a day. Petitioner had been earning $976.15 per week at the time of his injury, entitling him to a temp rate of $683.31 per week. However, his light duty wage was much lower since he was only working four hours per day. While on light duty petitioner was receiving a net payment of $329.43 per week. That was $353.88 less per week than petitioner was receiving on temp benefits.
Petitioner returned to the light duty job but also contested in the Division of Workers’ Compensation the right of the employer to pay him less than the amount he was receiving on temporary disability benefits. The Honorable Emille Cox, Supervising Judge of Compensation, ruled in favor of petitioner, holding that a temporarily disabled worker is entitled to temporary disability benefits of 70% of his or her wage subject to the maximum and minimum limits in effect for the year in question. The Judge reasoned:
It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than the $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.
The decision of Judge Cox was not appealed, and had it been, the decision would no doubt have been affirmed. The reasoning is sound, that one is still temporarily disabled while on light duty and therefore an employee must receive at least as much as his or her temp rate while working light duty until the employee reaches maximal medical improvement or returns to work full duty. Light duty cannot be used to reduce an employee’s wage below the rate of temporary disability benefits.