Wandering the basement of the Louvre in Paris, I was awed by a polished stone, an eight-foot-high, shining large basalt stele, edged with tiny cuneiform markings, surrounded by a small velvet rope. One of the oldest legal codes stood before me, I had to understand it, touch it. I sat on the floor for an hour, reading the museum-provided translation, of one of the first workers’ compensation codes ever written.
Etched in stone, immovable and unchanging, the Babylonian code of Hammurabi (1780 B.C.E.) lasted nearly a millennium.
Must New Jersey’s workers’ compensation (circa 1911) code remain etched in stone, stagnant after 100-plus years? Is it time to modernize New Jersey’s workers’ compensation law? To replace the cold insurance corporate talk of “stakeholders” with human beings? To replace the schedules or list of injured body parts with a modern system of wage loss?
Hammurabi listed body parts and their relative worth (lines 198 and 199 of the code: one eye equals one gold MINA; one tooth equals one-third of a gold MINA; etc.). The New Jersey workers’ compensation statute does no better, even listing the value of one tooth at “four weeks (of pay) for each tooth lost.” The New Jersey statute echoes Hammurabi, stating: “For the loss of vision of an eye, 200 weeks” (of payments). (N.J.S.A. 34:15–12 schedule of payments; line 16, line 18).
Somewhere in the bowels of Trenton sits our present statute from 1911, surrounded by a velvet rope. It is time to cut the velvet rope, and modernize the arcane dependence on a completely arbitrary valuation system, a schedule of macabre body parts, unchanged since the time of Hammurabi, 3797 years ago! How do you value the loss of an eye, the loss of a tooth, the loss of a leg? Merely by X-number of weeks of payouts! It was advanced thinking in ancient Babylon, revived by the Kaiser in 1870’s Germany, and imported to America in 1911. But what other laws from ancient Babylon or 19th century Germany do we still depend on?
In 1979, many states in America introduced a simple wage-loss system of workers’ compensation; if a worker loses permanent income due to a major injury, the worker is made whole by a payment of a lost-wage differential, covering all the years of his or her reduction in wages due to the disability. Can it work in New Jersey? It already does!
A working model of the wage-loss system functions today in New Jersey, in our great ports of Elizabeth and Newark. Federal longshoremen, covered under the Longshore and Harbors Worker’ Compensation Act (LHWCA), receive a qualitatively higher and more dependable coverage for injuries than most New Jersey workers. The Longshore act employs a mixed system; a schedule of body parts (arms, hands, fingers, leg, foot, ears) (Section 8C) and a wage-loss component. Under the wage-loss component, an injured worker is entitled to permanent compensation, for accident, injury or occupational illness resulting in a permanent loss of wage/earning capacity; payable up to two-thirds of the employee’s loss of earning capacity. For as long as the worker’s wages are reduced due to the disability, the worker receives worker’s compensation payments. There is no arbitrary cut off as in today’s schedule system, i.e., 200 weeks of payments or 30 weeks of payments and your compensation is completed. For real wage loss there is real compensation; if you return to a job with the same wages or greater wages there is no additional compensation.
For example, if the worker had an average wage of $600 per week, and now a severe back injury reduces him to a new job, earning only $300 a week; the Workers’ Compensation insurance must pay two-thirds of the differential or lost wage. The petitioner lost $300 per week, in lower wages, due to the back injury. The workers’ compensation payout would be two-thirds of $300, or $200, added to the petitioner’s wage of $300 a week. In total, the petitioner would take home $500 per week, for as long as his wages were diminished. In legal parlance, this payout would be termed an “unscheduled” “permanent partial disability” after “MMI” (maximum medical improvement).
The key is that permanent partial disability benefits are payable for as long as the disability continues to affect the worker’s salary and earning capacity.
Plus, the federal Longshore statute, provides immediate access to a doctor of the injured worker’s choice, and immediately commences temporary pay while the worker remains under treatment and out of work. The greater cost, due to the freedom to choose a competent doctor, is more than offset by the reduction in permanent payouts. The elimination of the arbitrary schedule of impairments reduces payouts to relatively minor injuries, measured by the impact on one’s earning ability. Since only the most seriously injured workers return to a lower salary job, the macro-economic cost of the federal Longshore system is less of a burden on employers than the New Jersey current workers’ compensation system. The “wage loss” formula makes sense for all parties, insurance companies and injured workers.
Reform makes sense, a wage replacement formula far exceeds the illogical arbitrary — almost magical — schedule of disabilities, present in the current New Jersey Workers’ Compensation system. It is time to rise out of the Stone Age, to embrace modernity and reform the New Jersey Workers’ Compensation system. Fairness and humanity should be the benchmark of New Jersey law. Proper, fair compensation with competent, efficient medical treatment are the hallmarks of the wage-loss formula enjoyed under federal law, by New Jersey dock and longshore workers. All New Jersey workers are entitled to the benefits of a modern, fair compensation act. Three millennia of Babylonian law is enough. The Hammurabi Code belongs in a museum, not in our modern law.
Bernstein is a Certified Workers’ Compensation Law Attorney with Kirsch, Gelband & Stone in Newark. He is a founding member of the NJSBA Mass Disaster Relief Program, providing pro bono legal aid to disaster, terrorist and hurricane victims, and a licensed EMT.