An attorney in New Jersey recently asked me a question I have not been asked before, namely whether some permanency evaluators ask too many questions of examinees. This attorney commented that some of the experts seem to be engaging in discovery with all their questions. This got me thinking about what permanency evaluators are supposed to be focusing on during examinations. What kinds of questions are crucial to ask under New Jersey law during a permanency exam?
In my opinion, a lawyer cannot practice workers’ compensation law very well, and a doctor cannot perform permanency evaluations well, without reading and comprehending the case of Perez v. Pantasote, 95 N.J. 105 (1984). The Supreme Court in its 1984 opinion explained what the legislature intended after the massive overhaul of the New Jersey Workers’ Compensation Act in 1979. The law dramatically changed proofs on disability. This is what the Supreme Court wrote: “First, there has to be demonstrable objective medical evidence of a restriction of a function of the body or an organ. Second, there had to be a reduction to a material degree of an employee’s working ability.” Then the Court added that even if there is no reduction in working ability, an award for permanency still can be made if “…the injury substantially interferes with other, non work-related aspects of petitioner’s life.”
What this means is that permanency awards are not about whether someone has a herniated disc after the accident or underwent surgery or had injections. That type of negotiation ignores what the Supreme Court said. The law passed in 1979, as interpreted the Supreme Court, focused entirely on these criteria: 1) objective medical evidence; 2) substantial impact on work, or 3) “substantial interference” with non-work activities at the time of settlement. You can have a herniated disc from an accident and have no problems at work or at home. If that is the case, there would be no award of permanency.
In an impairment state, (which New Jersey is not), the job of a permanency evaluator is much simpler. The focus is just on the injury and diagnosis (herniated disc, medial meniscal tear, etc.) and on an evaluation of the injured body part. There is no need in an impairment state to ask about impact on work or non-work activities. That doesn’t matter. Rather, the permanency evaluator generally refers to the AMA Guidelines for Impairment to establish a percentage for a permanency award. New Jersey does not use AMA Guidelines because it is a disability state. Here is how to think about the difference between impairment and disability states. Impairment is to disability as high school is to college. It’s harder to get to the next level.
Permanency evaluators need to ask questions of the examinee that address the requirements discussed in the Perez decision. Here are some possible questions: Have you been able to return to work in your former job or in a new job? Are you able to work a full day or do overtime now? Were you active in sports before the accident? Are you active now in sports or in going to the gym? Have you had to eliminate or curtail certain activities since the accident? What has been the impact of this accident on your non-work life? In addition, the permanency evaluator in every state must ask questions about past medical history of injuries or accidents to the same body part, including prior or subsequent car accidents, slip and falls, prior or subsequent workers’ compensation injuries, etc.
More questions are better than fewer questions. How does a permanency evaluator do this? There are some very strong medical groups on the respondent side that get this information by asking the examinees to fill out forms in the waiting room. There is one medical group located in central Jersey working for petitioners’ counsel that gets the information in a different way. They have a form that has two columns at the top, one for “difficulty” and the other for “no difficulty.” Scores of major life functions are listed on the left side, and the examinee checks off difficulty or no difficulty in performing life functions, like sitting, lifting, cleaning, etc. That information is then included in the permanency report. The important issue is not how many questions are on the intake form but whether the evaluation is addressing the legal test of disability in New Jersey.
Judges are impressed when they read a permanency report that complies with the Supreme Court decision in Perez, especially since some permanency evaluators just regurgitate the medical records sent to them, conduct a physical examination and then provide an estimate without even asking about the impact of the accident on work life or non-work activities. This is evaluating paper, not people. Some permanency evaluators prepare reports without asking or knowing if the employee has a job at the time of the evaluation!
Workers’ compensation has changed immensely since 1979 when the statute was overhauled. The most significant fact today is that workers’ compensation in New Jersey has become extremely expensive. In the first two decades after the 1979 amendments, rates remained relatively inexpensive. Then rates skyrocketed in the past 10 years. In 2026 a person with high wages who is out a year will receive over $62,000 in tax free temporary disability benefits. An award of 50% permanent partial disability will cost a private or public employer nearly a quarter of a million dollars. Most of those employees are back to work at the time they receive the award. Medical costs are higher in New Jersey than in any other state. These trends underscore why it is so important that permanency evaluators pay close attention to how the Supreme Court defined disability in New Jersey over 40 years ago.