Gary E. Adams

New Jersey Workers’ Compensation for Part Time Employees

Two workers who suffer the same exact injury most often will not receive equivalent permanent disability awards in the worker’s compensation Court. This is because the dollar value of a permanent disability award is determined by the number of weeks awarded multiplied by the employee’s worker’s compensation rate. For example, two people receiving an award of 20% permanent partial total disability for their injury, will both be entitled to 120 weeks of benefits at that employee’s compensation rate. However, each employee’s compensation rate is based on that employee’s weekly wage. The New Jersey Worker’s Compensation statute at N.J. S. A. 34:15-37, states that the rate of compensation may not exceed 70% of the petitioner’s wages at the time of the occurrence of the accident. Therefore, different employees earning different wages will receive different awards, up to the maximum compensation rate.

An employee’s weekly wage becomes a major concern when the employee is a part time employee. At first glance, it would appear that because a part time worker works less hours, and therefore his or her weekly wage and compensation rate would be lower than that of a full time employee, that employee would receive less money for the same award of permanent disability. There are instances, however, in which a part time employees wages can be reconstructed to a full time wage for the purposes of permanent disability awards.

In discussing the issue of reconstruction of wages, New Jersey courts have lumped part time workers into three categories:

a) The worker who only wants to work part time hours, and would continue working part time hours had the employee not been injured.

b) The part time worker who is only working part time hours, but would work full time if available; and

c) The part time worker who works other jobs at the time of the work injury.

In the interest of fairness, the Courts have treated each of these three distinct types of part time workers differently when calculating their weekly wage for the purpose of determining that employees permanent disability rate.

In the recent case, Gruzlovic v. Giovani’s Trattoria, A-1519 08T1 (App. Div. 2010), the court stated that a Judge of Compensation can “ reconstruct wages” to a full time rate because the law allows for wages of a part time employee to be reconstructed, and fixing the rate of permanent disability based upon “diminished future earning capacity.”

Despite this finding, the court in Gruzlovic, did not reconstruct wages. The employee in that matter, a cafeteria worker, had worked part time for the employer for 13 years. At no time during those 13 years did she seek additional part time employment. Further, after the accident, she no longer worked stating “I thought I had my fare share of work.” Under these circumstances, the Court determined that there was no proof that the employee had a “diminished future earning capacity” and this situation did not merit reconstruction of wages.

The Court in Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993) also addressed the issue of whether it is appropriate to reconstruct wages for part time employees to provide compensation that would have been awarded for full time employment. The Katsoris court determined that it was “appropriate when necessary to compensate the worker for loss of earning capacity; when there is a diminution of future earning power. Loss of earning capacity includes loss of potential for full employment.

The Katsoris Court determined that where an employee, who is permanently disabled due to an injury on a part time job also has a full time job, use of a reconstructed work week is appropriate if there is an impact on the employee’s ability to return to the to the full time employment. However, where the person has a part time and a full time job, and is disabled from returning to the part time job, but can return to the full time job, reconstruction is inappropriate as there is no loss of potential for full employment.

In cases involving part time employees with no full time work, a Worker’s Compensation Judge must employ principles of “fairness and equity” in determining if circumstances require reconstruction. The Katsoris Court concluded that reconstruction is appropriate when the permanently disabling injury “prevents or interferes with later full- time employment” The Katsoris court agreed with the decision in Gruzlovic, stating that the cafeteria worker’s wages in Grulovic should not have been reconstructed as there was no basis for an inference that that petitioner would have pursued full or part time jobs “but for” her disability. The Katsoris Court concluded that, “When an inference of a loss of potential full time employment attributable to the accident is not available from evidence presented, principles of fairness and equity developed to compensate for that lost potential are not implicated and reconstruction is not appropriate.”

In Rommel Calle v. DeJana Industries, Sup. Ct of NJ App. Div. 2011 N.J. Super. (Unpublished), the Court addressed the part time worker who has several part time jobs at the time of his injury. In that matter, the Petitioner earned $11 per hour as a seasonal part time employee for DeJana Industires. Although petitioner did not work 5 days per week for DeJana, on days he did not work for DeJana, he would stand on a corner waiting for painting work. He would earn $120 per day on those days. Also, during the summer Petitioner would work at jobs paying $20 to $22 per hour. The Judge relied on the Katsoris decision, and stated, “ When an injury is such that it impairs future earning capacity, wages should be reconstructed. In this case petitioner worked part time but would perform full time work if available for other employers and in other seasons.” The Judge ruled that ‘but for’ the injury Petitioner would be working full time and that is what the loss is.”

The Rommel Calle Court determined that if Petitioner would have been able to work these other jobs after the accident, wages would not be reconstructed. Wages are only reconstructed if the injury is so severe that the employee could not work on a full time basis again.

The case of Engelbretson v. Am. Stores, 49 N.J. Super. 19 (App. Div. 1957) aff’d 26 N.J. 106 (1958), discusses the prospect that a part time worker today may have full time work tomorrow or that a part time worker may have 4 or 5 such jobs each week. The Court found reconstruction of wages to be appropriate when a permanently disabling injury prevents or interferes with later full time employment. The Courts require consideration of the relationship between the work injury and the potential for future employment in determining “whether fairness and equity require in the circumstance warrant reconstruction of part time wages.”

The Courts have determined that the loss of future full time work must be related to the work injury, and not to some other cause, in order to justify reconstruction of wages. In Krogman v. Krogman Filter Co., 89 N.J. Super. 16, the Court stated that

“The right to reconstruct the pay base has been assumed to be dependent on the assumption that the injured workman, absent the accident, would have been able to earn full time wages during a hypothetical future work career.” If the injured worker would not have been able to do full time work, due to some preexisting condition and not due to the work injury, then that worker would not be entitled to reconstruct wages.

Therefore, based on a long line of New Jersey cases, it is apparent that the Workers Compensation Courts will compensate a part time injured worker as if they were a full time worker for the purposes of permanent disability, if it can be proven that:

a) it was the worker’s intention to work full time hours in the future, and

b) but for the work injury, he would have worked full time hours, and

c) the worker was unable to work full time hours as a result of the work injury.

Learn more about: Workers’ Compensation Disability Benefits.

Managing Partner

Gary E. Adams

Workers’ Compensation, Employment & Labor, Personal Injury

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