Geaney: Transportation Issues in Workers' Compensation
Monday, February 24, 2020 | 645 | 0 | min read
Adjusters and employers familiar with other state workers’ compensation laws are often surprised to find out that the New Jersey Workers’ Compensation Act contains no statute requiring employers to pay for transportation costs to get employees to medical appointments, and no mileage reimbursement provision.
When an employer requires an injured worker who has moved out of state to come back to New Jersey for an independent medical examination, the employer does not have to pay for airfare, reimburse costs of travel or mileage.
Yet there are situations where it may make good sense for employers to consider providing transportation. One such situation occurs when there is an offer of light duty. As readers well know, the Harbatuk case stands for the proposition that an employer can terminate temporary disability benefits on an offer of light duty if the injured employee refuses.
Suppose the injured employee is more than willing to accept the light-duty offer, but the authorized treating doctor will not permit the worker to drive a car as a result of the work injury. Should the employer refuse to pay temporary disability benefits when the employee does not appear for the light-duty assignment?
This situation happens quite frequently because many injuries lead to restrictions on driving following surgery or the employee may be taking authorized prescription medications that negate driving. When faced with this issue, most judges of compensation will not endorse the termination of temporary disability benefits when an employee wants to come back to work light duty but cannot due to a restriction against driving imposed by the treating doctor.
Judges do not consider this to be a refusal to perform light duty, so it may make sense in this situation to provide some means of transportation.
Distance is often the key variable. Many injured workers have long drives to work where no public transportation is available. Some employers will offer to have a fellow employee pick up the injured worker and drive him to the light-duty assignment. In rare situations, employers may even provide an Uber or Lyft driver.
Still other employers faced with this dilemma will simply continue to pay temporary disability benefits until the worker reaches maximal medical improvement or can return to driving. New Jersey is a state where temporary disability benefits end at MMI or return to work full duty, whichever is earlier.
Another transportation issue arises when the injured worker cannot get to physical therapy or make treatment appointments because of a driving restriction. Again, there is no case law on this issue, nor any statute that addresses it. Employers will often come up with a creative solution because they know that if the employee cannot get to treatment or therapy, the recovery period will be lengthened.
Thus far we have discussed cases involving driving restrictions. But there is a large contingent of New Jersey workers who do not own cars and get to work only through employer-provided transportation. When an injury occurs to such an employee, there may be no way to get to the office of the treating doctor.
Some employers provide transportation in this situation. It is also worth noting that there are a few occupational health facilities and physicians who provide transportation, picking the employee up for treatment and returning him to his residence. This is an important service that employers should bear in mind.
The lesson in all of this is that the absence of a statutory provision on transportation has not prevented New Jersey employers from creating practical solutions to challenges in getting employees to work and to medical appointments.
John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.