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Employers and workers’ compensation professionals are very familiar with reopener petitions or applications for modification of awards. A reopener may be filed by the petitioner within two years of the last payment of indemnity benefits or the last authorized treatment date, but not many workers’ compensation professionals realize that employers can also apply for modification of awards. The pertinent statute, which is N.J.S.A. 34:15-27, allows both employees and employers to file such applications for modification.
When would a respondent move to reopen an award? Suppose the petitioner receives an award of 100% permanent and total disability benefits for physical injuries asserting that he or she can never work again. Six months after the award is entered, respondent becomes aware that the petitioner is in fact working in a very physical job and can document this fact. What can the employer do? The proper step would be to file an application to modify the award, suspend benefits altogether, and pursue any other remedies such as a potential finding of fraud. That is why Section 27 is so important. An employer cannot simply stop making payments when there is a court order to do so. The remedy is to reopen the prior award under Section 27 and file a motion for specific relief.
Consider also a situation where an injured employee receives a very large partial permanent disability award, perhaps 60% paid over 360 weeks. The large award was influenced by testimony at trial that the injured employee was not able to return to work. Subsequent investigation reveals that the injured employee has returned to a physical job with even higher wages than at the time of the accident. Just because the prior award was not for total and permanent disability benefits does not mean that the employer cannot move to modify the award of 60% to a lower percentage. It is important for workers’ compensation professionals to understand that reopeners can work both ways: the percentage of award can rise or it can fall.
Lastly, consider a case where the reason for the relatively high award is that the judge is concerned with the employee’s need for ongoing narcotics to reduce pain. From the date of the accident to the date of the award the employee has been taking prescription narcotics for pain, and the award provides for ongoing use of prescription opioids. Thereafter respondent’s pain medicine physician does testing noting that the injured worker is not even taking opioids. The urine tests show no evidence of any narcotics in the petitioner’s system, and the petitioner advises that he or she feels much better and does not need the narcotics any longer. This would also be an appropriate case to file a modification downward of the prior award.
So Section 27 modifications are premised on this equitable concept: when the claimant’s condition has worsened, he or she can apply for a higher award; when the condition has improved, the employer can apply for a lower award.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.