DIVISION OF WORKERS'COMPENSATION

BERGEN COUNTY DISTRICT

  _____________________________                           

                            B E F O RE: HONORABLE PHILIP A.  TORNETTA

                                                 JUDGE OF COMPENSATION

                           A P P E A R A N C E S:

                           FRED RABINOWITZ, ESQ.

                           ATTORNEY FOR PETITIONER

                           BAUMANN & LYNES

                           BY: DONNA J. SOVA, ESQ.

                           ATTORNEY FOR RESPONDENT

            This matter comes before the court by way of Notice of Motion of  petitioner, Marek  Piskorz, (hereinafter “petitioner”) for  commutation of  his  Workmen’s Compensation award entered on October 10, 2007, pursuant to N.J.S.A. 34:15-25. The award was for  37 ½ of  partial total disability for orthopedic and neurological residuals of a fracture of the left wrist, multiple rib fractures, spinous process of T 10, T 11 and T 12 and post concussion syndrome. It was stipulated by the parties that the balance of the award due petitioner as of the return date of the motion is 121 weeks of compensation at a rate of $368.00 per week, which equals $44,728.00. This amount will be subject to a discount of five per centum (5%) simple interest as required by statute, if the award is commuted.

            A hearing was held on July 30, 2008 at which petitioner, in support of the motion, testified that he presently resides at 56 John Street in Rutherford, New Jersey. He is unmarried and he has no children. It is his intention  to return to Poland , in his words,  “in the future, two, three months”  for the purpose of  opening a business  inspecting motor vehicles. However, he has not yet made any airline reservations for the trip to Poland.

Petitioner attended eight years of elementary school and three years of vocational school  studying automobile mechanics. Thereafter, he served in the Polish army as a motor vehicle technician. At the time of his work related injury, petitioner was working as a construction laborer.  He has been unable to return to work as a construction laborer, because he continues to have pain in his wrist, back and ribs. He is presently working as a carpenter, mounting cabinets.

            Petitioner has applied and received approval for a financial subsidy from the European Regional Development Fund for $60,000.00 to open the business, however, as a condition of the approval, he must  provide his own matching personal funds of $60,000, otherwise he will not receive the subsidy. (P-1A and P-1B Evid)  Petitioner acknowledges that  the balance of his Workmen’s Compensation award is not sufficient to meet this condition, but he intends to use  $25,000.00 of his own accumulated personal funds to meet the condition. When questioned by the court as to the whereabouts of the additional $25,000.00, petitioner testified that $15,000.00 is in a savings account in his father’s name in Poland and $10,000.00 is in cash at his home in New Jersey. When asked by the court if  he had any proof of the bank account in Poland, he said he does not have it.

Upon further questioning by the court, petitioner  testified  that he has never owned his own business and has no experience in conducting a business. When asked  how he would support himself if the  proposed business was not successful,  he responded he did not know.

Respondent has taken no position as to petitioner’s motion, other than to protect its right to the discount of five per centum (5%) simple interest as provided for under the statute.

N.J.S.A. 34:15-25 provides:

        Compensation may be commuted by the bureau  at its present value when             discounted at five per centum (5%) simple interest, upon application of either party, with due notice to the other, if it appears that such commutation will be for the best interest of the employee or the dependents of the deceased

employee, or that it will avoid undue expense or undue hardship to either

party, or that the employee or dependent has removed or is about to remove

from the United States, or that the employer has sold or otherwise disposed

of the greater part of his business or assets.

         Unless so approved, no compensation payments shall be commuted

         In determining whether commutation will be for the best interest of

           the employee or the dependents of the deceased employee, or that it will

           avoid undue expense or undue hardship to either party, the bureau and

           the Superior Court will regard the intention of this chapter that

           compensation payments are in lieu of wages, and are to be received by

           the injured employee or his dependents in the same manner in which

           wages are ordinarily paid. Commutation is to be allowed only when

            it clearly appears that an unusual circumstance warrants departure from

            the normal manner of payment and not to enable the injured employee

            or dependents of a deceased employee to satisfy a debt, or to make               payment to physicians, lawyers or others.

            The essence of the scheme of the Workmen’s Compensation Act   is to provide weekly compensation, in lieu of wages, to the injured employee during the period of disability and commutation of the payments is out of the normal course.  Verra v. The Mayor and Council of the City of Hoboken,  70 N.J. Super.  422 (App.  Div.  1961). In the exercise of his or her discretion when determining if commutation should be permitted or precluded, the compensation judge should be guided by the express language of N.J.S.A. 34:15-25. Harrison v. A & J Friedman Supply Co., 372 N.J. Super. 326 (App. Div. 2004)

            After considering the testimony of petitioner, the court finds that commutation would not be in the best interest of the petitioner since his situation does not present an unusual circumstance which would warrant   a departure  from the normal manner of payment of his Workmen’s Compensation award.  Petitioner is presently employed as a carpenter. There is no evidence that petitioner is presently unable to maintain his present lifestyle or unable to meet his expenses  for such essentials as  food, clothing, mortgage or rent,  insurance or transportation. He has presented  no evidence that commutation is for the purpose of  avoiding any undue expense or undue hardship. It is the finding of this court that the sole purpose for   petitioner seeking commutation is to have funds available  to invest in a motor vehicle inspection business venture in Poland, despite the fact that he has no previous experience in owning a business of this type or any other type of business and does not know how he would support himself if the business was not successful.

            Furthermore, it is unknown when Petitioner will remove from the United States. He testified that  he would return to Poland “in the future, two, three months” and has not yet made any airline reservations for a trip to Poland.

 For all of the foregoing reasons, the court finds that commutation would be inappropriate in this matter and the motion is denied.

 I will allow a stenographic fee of $150.00 to Global Court Reporting Services, Inc., which is to paid by respondent.  

Dated:                                                                  ________________________

                                                                             Philip A. Tornetta

                                                                             Judge of Compensation