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B E F O R E :               HONORABLE CARMINE J. TAGLIALATELLA

                                    JUDGE OF COMPENSATION

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

       Henry J. Kowalski, III, Esquire

       37 Cannon Range Road
       Milmay, NJ 08340

      Attorney for the Petitioner

      Robert L. Fraley, Esquire

      Kennedy, Campbell, et. al.
      303 Lippincott Dr., Ste 310
      Marlton, NJ 08053

     Attorney for Respondent

This case comes before the Court to determine if Jo Ann Cherry (hereinafter “Petitioner”) is entitled to Medical and/or Temporary Disability benefits as defined by N.J.S.A. 34:15-7 et seq.; and if that is related to her accident of December 31, 2008.

Petitioner filed a Motion for Medical and/or Temporary Disability benefits with the Division on August 19, 2010.  It was scheduled for a pre-trial conference on September 26, 2010 at which time the attorney for Edmund’s Direct Mail (hereinafter “Respondent”) advised the Court that they were accepting responsibility to provide additional medical treatment but not temporary disability benefits.  A hearing date was scheduled and Petitioner testified on October 18, 2010.  As there were no other witnesses both parties submitted briefs to the Court to rule solely on the issue of Petitioner’s entitlement to further temporary disability benefits as defined by the Workers’ Compensation Act and case law.

As part of their briefs both parties agreed to a set of stipulations:  The Petitioner met with a compensable accident on December 31, 2008 when her left foot was run over by a forklift.  She received a course of authorized treatment and temporary disability benefits until she was released from care sometime in August of 2009.  However, she was given permanent restrictions by the authorized treating physician, including a limit to the amount of time that she could stand during the course of a workday.  Respondent was unable to meet these restrictions so Petitioner was terminated and began to collect Unemployment Benefits on a continual basis from September 2009 up through September 16, 2010.  Petitioner has received no monetary benefits since this date.

In her Motion, Petitioner claimed a need for further treatment for her foot wound.  The medical benefits are being provided.  Respondent has authorized Dr. James Herrington to conduct a repeat surgical procedure and this was accomplished at Shore Memorial Hospital on September 16, 2010.  Petitioner has provided a letter from Dr. Herrington dated October 4, 2010 in which he states that Petitioner “has an open wound and is unable to work.”  This is not disputed.  Neither is it disputed that the Petitioner was anything but candid and credible during her testimony.

Petitioner continues to claim that the Respondent is responsible to restore her temporary disability benefits as she is under the care of an authorized treating physician who has stated that she is currently unable to work.  She relies on N.J.S.A. 34:15-12a as well as Section 14 which deal with the schedule of payments and the proscription for the “waiting period.”  The Statute also expresses a person’s right to these benefits as continuing from the first date of inability to work due to the accident until they are “able to resume work and continue permanently thereat.”  N.J.S.A. 34:15-38; and citing Monaco v. Albert Maund, Inc., 17 N.J. Super. 425 (App. Div. 1951, 21 N.J. Super. 443 (App. Div. 1952).

Petitioner in her brief states simply that she is entitled to her benefits because the authorized treating physician, Dr. Herrington, has performed an authorized surgery the result of which has temporarily incapacitated her.  She goes on to refute Respondent’s reliance on Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif.. denied, 188 N.J. 492 (2006) by distinguishing the facts between the cases.

In its brief the Respondent does rely on Cunningham to make its points.  Mr. Cunningham was an employee of Atlantic States Cast Iron Pipe Co. (Atlantic States) who had an admittedly compensable work injury for which he received benefits and was returned to work.  Subsequently he was terminated for cause.  Afterward, he claimed entitlement to temporary disability benefits due to his return to the care of an authorized doctor and determination that he was unfit to work as a result of his compensable injury.  Respondent argues that the Cunningham court held that the Petitioner must demonstrate that she was either employed (earning wages) or had the “promise of employment” before being entitled to receive temporary disability benefits.  There is more to the decision of the Appellate Division in the Cunningham case then is contemplated in the Respondent’s brief.

Respondent espouses the application of a rigid rule derived from Cunningham which does not exist.  While there is language in Cunningham regarding Petitioner’s burden to prove a loss of wages, Respondent’s focus on the “promise of employment” as the sole test of that loss is incorrect.  The Cunningham court was “mindful of [the] remedial and beneficent purposes [of the Act]” when they adopted a “more flexible approach […].”  This approach requires a court to determine if the Petitioner would gain a windfall by receipt of temporary disability benefits; conversely, would this visit a harm on the Respondent.

A brief review of some of the cases which deal with provision of temporary disability benefits is necessary in order to clarify the instant issue.  In doing so we must consider the general philosophy of these benefits and the difficulty for the courts to balance provision of same with the rights of the employers of the state.  The court in Cunningham did consider these cases in coming to its decision and this Court is guided by them.

During the almost 100 year history of the Act it has become axiomatic to state that Workers’ Compensation is social legislation intended for the benefit of the injured worker.  Brower v. ICT Group, 164 N.J. 367 (2000) (among many cases cited for this proposition).  However, there is also a trade off of rights and responsibilities.  The employee is afforded swift and sure medical treatment and pay for lost wages in exchange for the right to sue his employer for negligence.  Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985).  It is this quid pro quo that is examined in this case.

The Cunningham court goes on to note the following:  Payment of temporary disability benefits is a “partial substitute for loss of current wages.”  Citing Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966).  Removal from employment due to pregnancy disqualified an employee from receiving temporary disability benefits.  Electronic Associates. Inc. v. Heisinger, 111 N.J. Super. 15, 20 (App. Div.), certif. denied, 57 N.J. 139 (1970).  A full-time college student was not entitled to provision of temporary benefits once he resumed school in September.  Tamecki v. Johns-Manville, 125 N.J. Super. 355, 359 (App. Div. 1973), certif. denied 64 N.J. 495 (1974).  And finally, that an injured teacher is only entitled to receive temporary disability benefits during the summer months if she can prove that she would have worked and therefore lost income.  Outland v. Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531, 543 (1998).

All of this suggests that payment of temporary disability benefits is not as simple as Petitioner would like the Court to believe.  Nor is it as ‘straightforward’ as the language of Section 38.  It is part of the exchange of rights, responsibilities and benefits that have been at the heart of the Act for nearly a century.

In consideration of all of the above some mention must be made of the actual circumstances which come before the Court.  Ms. Cherry was separated from her employment with Respondent.  She did not choose this, but that is not wholly relevant.  However, the Court cannot ignore that her termination was the result of her inability to perform her job with Respondent due to her work related injury.  Ms. Cherry began receiving Unemployment Benefits for approximately one year and fulfilled the requirement of searching for a job throughout that time.  In short, she demonstrated that she was ready, willing and able to work.  Furthermore, the Court is also mindful of the economic circumstances into which she was released.  In the last several years the country and state have been experiencing some of the highest levels of persistent unemployment (and unemployability) since the Great Depression.  Finally, she became ineligible for continuing Unemployment Benefits on September 16, 2010 when she was no longer “able” to work due to her surgery and recovery.

The Court also considers the nature of Ms. Cherry’s Unemployment Benefits.  If the Respondent is correct, then these benefits are not wage replacement and merely some form of social welfare.  If that were the case then why does the Federal Tax Code hold these benefits taxable?  26 U.S.C. 85(a) (General rule in the case of an individual, gross income includes unemployment compensation.)  It is apparent to this Court that these benefits are wage replacement, which Petitioner has to forfeit because she is not currently able to work.  This constitutes a ‘wage loss’ sufficient for the Respondent to provide temporary disability benefits.  To hold otherwise would be to harm the Petitioner.

It is for all of these reasons that this Court finds that Ms. Jo Ann Cherry is entitled to the restoration of her temporary disability benefits effective from September 16, 2010 and continuing until such time as she is released from authorized care.  An Order consistent with this decision shall be drafted by the Petitioner’s attorney and circulated within 5 days.  Respondent shall pay a stenographic fee to Jersey Shore Reporting Service of $150.  All other fees and costs shall abide until a final hearing in this matter.

_______________________________________              November 29, 2010

HON. CARMINE J. TAGLIALATELLA, JWC