The facts in this claim are not disputed.

The Petitioner was injured on May 20, 2010 while in the course and scope of his employment with the Respondent.  The Respondent accepted the Petitioner’s accident as compensable and authorized medical treatment and the payment of temporary disability benefits effective May 21, 2010.

On September 2, 2010 a Motion for Medical and/or Temporary Disability Benefits was filed on behalf of the Petitioner alleging that the Petitioner was being paid at the incorrect Temporary Disability Benefit rate of $212.00 weekly and that the Respondent had prematurely terminated his temporary disability benefits on July 12, 2010.  Petitioner’s Motion attached a note from the authorized doctor indicating a release to an eight (8) hour day of light duty work with occasional lifting of small objects effective August 11, 2010.  Respondent’s answer to the Motion was filed on September 16, 2010.  Respondent’s answer attached a medical report from the authorized treating doctor dated August 23, 2010 wherein it was noted that Petitioner was released to return to an eight (8) hour day of light to medium duty work with a 20lb. lifting restriction effective August 24, 2010.  Respondent’s answer indicated that wage records were being verified and any adjustment in the Petitioner’s temporary disability rate would be made pursuant to receipt of verification of Petitioner’s wages. 

The Petitioner’s Motion was listed for a hearing on October 15, 2010.  At that time, the Respondent had not received confirmation of Petitioner’s wages.  Nonetheless, an Order was signed by the Court ordering the Respondent to authorize reinstatement of temporary disability benefits in an amount consistent with Petitioner’s certification; i.e. $392.00 per week until such time as the Respondent could produce proof of Petitioner’s actual wages.  On the date of this hearing, both parties conceded that the Respondent did not have a “light/medium-duty” position for the Petitioner.  As a result, the Court’s Order further stated that the Petitioner’s temporary disability benefits should continue until the Petitioner has reached maximum medical improvement.

On November 17, 2010 Petitioner’s attorney filed a Notice of Motion to Enforce the Court’s October 15^th, 2010 order. Therein the Petitioner alleges that the Respondent had issued a check in the amount of $6,778.28 to the Petitioner on November 4, 2010.  Said check was alleged to have represented payment of temporary disability benefits up to the date of the Court’s order.  Sometime thereafter, the Respondent informed the Petitioner’s attorney that Petitioner’s temporary disability benefits were being terminated pursuant to Petitioner’s employment elsewhere.  In support of Petitioner’s Motion to Enforce, the following additional facts were brought to the attention of the court: 

1. At the time of Petitioner’s work-related accident with the Respondent, the Petitioner had been employed with another employer, full-time; namely, Barnes & Noble, Inc. 
2. The Petitioner worked for the Respondent seven (7) days a week, from 7:30 a.m. to 3:00/3:30 p.m. 
3. The Petitioner worked for Barnes & Noble, Inc., concurrently, five (5) days a week, Monday - Friday from 4:30 p.m. to 12:30 a.m. 
4. When the Petitioner received his first light-duty release from Respondent’s authorized doctor on July 15, 2010, his second employer, Barnes & Noble, Inc. was able to accommodate his light-duty restrictions. 
5. The Petitioner, thereafter, returned to work light-duty for Barnes & Noble, Inc.

When the Respondent became aware of the Petitioner’s return to work at Barnes & Noble, Inc., the Respondent terminated the Petitioner’s temporary disability benefits.  Pursuant thereto the Motion to Enforce the Court’s October 15, 2010 Order was filed on Petitioner’s behalf.  The legal issue being two-fold: 
 

1. Whether, under New Jersey’s Workers’ Compensation statute a Respondent is obligated to continue paying the Petitioner’s temporary disability benefits without regard to the Petitioner’s return to “other” employment, and

2.  What, if any, impact, a Petitioner’s return to “other” work has on a Respondent’s continued obligation to pay temporary disability benefits when the Petitioner is still receiving authorized medical treatment, the Petitioner has not reached maximum medical improvement, and the Respondent is not able to offer the Petitioner work within the authorized physicians’ restrictions.

Briefs were submitted by both parties.  The following statutory provisions are relevant:

N.J.S.A. 34:15-12(a) provides in part:

 For injury producing temporary disability, 70% of the worker’s weekly wages received at the time of injury, subject to a maximum compensation of 75% of the average weekly wages earned by all employees covered by the “unemployment compensation law” (R.S. 43:21-1 et seq.) and a minimum of 20% of such average weekly wages a week.  This compensation shall be paid during the period of such disability, not however, beyond 400 weeks.

N.J.S.A. 34:15-14 provides:

Except as provided pursuant to R.S. 34:15-75, no compensation other than medical aid shall accrue and be payable until the employee has been disabled 7 days, whether the days of disability immediately follow the accident, or whether they be consecutive or not.  These days shall be termed the waiting period.  The day that the employee is unable to continue at work by reason of his accident, whether it be the day of the accident or later, shall count as one whole day of the waiting period.  Should the total period of disability extend beyond 7 days, additional compensation shall at once become payable covering the above prescribed waiting period.

N.J.S.A. 34:15-38 provides:

To calculate the number of weeks and fraction thereof that compensation is payable for temporary disability, determine the number of calendar days of disability from and including as a full day the day that the employee is first unable to continue at work by reason of the accident, including also Saturdays, Sundays and holidays, up to the first working day that the employee is able to resume work and continue permanently thereat; subtract from this number the waiting period and any days and fraction thereof the employee was able to work during this time, and divide the remainder by 7.  If, however, the total period of disability extends beyond 7 days, the waiting period shall not be subtracted from the number indicated above.  The resulting whole number and sevenths will be the required period for which compensation is payable on account of temporary disability.

The Respondent terminated the Petitioner’s temporary disability benefits because the Petitioner, having returned to light duty work at his 2nd employer, is no longer temporarily totally disabled.  In other words, the Respondent has interpreted New Jersey’s workers’ compensation statute as not requiring continuation of temporary disability benefits AFTER an injured employee has resumed “any” work.   

The Petitioner has interpreted New Jersey’s workers’ compensation statute as requiring Respondent to continue to authorize payment of temporary total disability benefits so long as the Petitioner continues to treat on an authorized basis, has not reached maximum medical improvement and the Respondent is unable to offer the Petitioner work within his light to medium duty restrictions.  

The Petitioner disagrees with the Respondent’s interpretation of the statute and concludes that such an interpretation would create a “windfall” for the Respondent.  A “windfall,” as defined by the Petitioner, is created by relieving the Respondent of its statutory duty to pay Temporary Disability Benefits based upon Petitioner’s employment with a different employer while the Petitioner is still unable to resume his work with the Respondent and continues his loss of wages from the Respondent. 

Although the Court agrees with the Petitioner’s characterization of this result, the legal issue is not whether or not the obliteration of Respondent’s obligation to pay temporary disability benefits in this situation creates a windfall; but, whether that windfall is supported by New Jersey’s worker’s compensation statute and the case law interpreting it.

N.J.S.A. 34:15-38 says, in pertinent part, that Respondent’s obligation to pay temporary disability benefits continues until the “first working day that the employee is able to resume work and continue permanently thereat.”     

The parties submitted briefs and there are no cases wherein the injured worker had two full time employers at the time of his or her accident.  However, the following cases are instructive on the correct interpretation of Section 38 of our statute.    

In Monaco v. Albert Maund, Inc. 17 N.J. Super.425, 86 A.2d 279 (1952) the Petitioner had been a truck driver at the time of his accident.  The Respondent authorized treatment and temporary disability benefits over the course of approximately two years.  When the Petitioner was released by the authorized doctor to light duty work, he obtained light duty work as a traffic officer.  After five weeks of working as a traffic officer, the Petitioner determined that he could not physically continue the work due to his injuries. The Respondent terminated the Petitioner’s temporary disability benefits effective the date of his resumption of work as a traffic officer and refused to reinstate his benefits after he stopped working as a traffic officer.  The court opined that Petitioner did not forfeit his right to temporary disability benefits as a result of his failed attempt to resume work.  Ibid.   The principal object of Section 38 was interpreted by the Court as “encouraging an injured worker to return to work at an early date. Id at 431.  In calculating the Petitioner’s temporary disability benefits, the number of days the Petitioner had worked as a traffic officer were deducted.

In Harbatuk v. S & S Furniture Sys Insulation 211 N.J. Super 614 (1986)   our Appellate Court reversed the Judge of Compensation’s decision not to award TDB to an employee who admitted to repairing children’s bicycles because there was no evidence that the Petitioner engaged in his hobby of repairing children’s bicycles on a five day per week basis for eight hours a day.  The court opined that an employee who is capable of intermittent light duty work is also able to obtain temporary disability benefits for those periods of time when he is unable to do any work.  Specifically, the court states that “An employee may be totally and temporarily disabled and yet have some degree of earning power…The general rule is that temporary total disability benefits are not automatically terminated merely because a claimant obtains some employment, if maximum recovery has not been achieved at the time.” Id. at 621. 

In the case of  Tobin v. All Shore All Star Gymnastics, 378 N.J. Super 495, 876 A.2d 326, the Petitioner was both the owner-operator and a chief gymnastics instructor for the Respondent.  The Petitioner injured her right shoulder and as a result of her injury she was authorized out of work while she was receiving medical treatment and being paid temporary disability benefits.  After approximately four (4) months, the Petitioner was released to perform light duty work only and as a result, she resumed her duties as owner-operator of the company but she remained unable to perform her duties as a chief gymnastics instructor.  The workers compensation insurance carrier refused to pay the Petitioner any temporary disability benefits so long as she was present at the Respondent “in any capacity.”  The Judge of Compensation ordered the carrier to pay the Petitioner because “during the time period in question the Petitioner was not able to perform her duties as a gymnastics instructor and her position as an instructor was her only “paid” position with the company.  Moreover, the Respondent had no alternative light duty “paid” position to offer the Petitioner. 

The Respondent appealed the Judge of Compensation, arguing that the Petitioner was, in fact, doing light work for the Respondent and therefore had resumed work.  The Appellate Court affirmed the Judge of Compensation, pointing out that the Petitioner was not receiving any pay for her duties as an owner-operator. The Respondent had to hire and pay an additional instructor to perform the Petitioner’s duties as an instructor.  Both the Judge of Compensation and the Appellate Court recognized the distinction between the Petitioner’s work as an owner-operator and her work as an instructor.  As an instructor, the Petitioner had worked between twelve and thirteen hours daily during the summer and five to six hours daily during the rest of the year.  As an owner-operator, the Petitioner’s duties included unlocking the facility, general supervision of the business and handling injured students. Since Respondent had a full-time bookkeeper to perform general accounting, paperwork and to run the office, Petitioner’s work-effort as an owner-operator was, conceivably, far from full-time and bore no resemblance to a full-time paid position..

In each of the above cases the facts involved either “some” light-duty work or “intermittent” light duty work and in the end, the Respondent was not held liable for paying the Petitioner temporary disability benefits for any days for which he or she had been paid to perform light duty work.  Although Tobin, on its face, may appear to represent an injured worker returning to something more than “intermittent” light duty work and, nonetheless, being entitled to continued temporary disability benefits, the decision by the court makes clear that the analysis was two-fold:  1) there was a determination of how much work the Petitioner was actually doing and 2) the Court considered the fact that the Petitioner was not getting paid for her work as an owner-operator.

The only case found wherein a Petitioner was not entitled to continued temporary disability benefits but was not getting, otherwise, paid is the case of Tamecki v. Johns-Manville, 125 N.J. Super. 355, 311 A.2d 20.  In that case, an injured worker resumed his full-time college studies prior to completion of all of his authorized medical treatment and a determination that he had reached maximum medical improvement.  The Respondent terminated the workers’ temporary disability benefits effective the date of his return to college and the Judge of Compensation agreed that the Petitioner was not entitled to temporary disability benefits while he attended college. A County Court reversed the Judge’s decision and the Respondent appealed. The Appellate Court agreed with the Judge of Compensation and discussed Section 38 and the concept of temporary disability as it applied to these facts. First, the Court points out that this Petitioner had voluntarily terminated his employment with the Respondent and as a result he was no longer losing any wages due to his injury but as a result of resuming his full time college studies.  Secondly, although the Petitioner’s treatment had not been completed, his authorized doctors were scheduling the continuation of his treatment during his breaks from college in order to accommodate the Petitioner’s return to college.  The Court, therein, considered the Petitioner’s ability to attend college full time as being analogous to the functional ability to resume work AND the Petitioner’s return to full time college also meant that the Petitioner had left the workforce and was no longer losing any wages.

In Williams v. Topps Appliance City, 239 N.J. Super. 528, 532 (App.Div.) 1989, a Petitioner was denied temporary disability because the doctor said he was capable of light duty work.  The Judge of Compensation refused to order the Respondent to pay the Petitioner for a 10 month period wherein he was capable of light duty work BUT did not actually find light duty work to perform.  In reversing the lower Court’s decision, the Appellate court held that “Petitioner’s theoretical availability for light duty work was not inconsistent with eligibility for temporary total disability benefits.”

Conclusion

There is no case law to support the Petitioner’s position in the instant case. Here, the Petitioner is working full time light duty for his 2nd employer while the Respondent is unable to accommodate his light duty restrictions and he is still treating on an authorized basis.  The Petitioner is getting his full-time salary at his 2nd job and that salary is more than his temporary disability rate with the Respondent.  Since he has resumed work, albeit light-duty and for a different employer and is getting paid, our statute does not require the Respondent to continue paying the Petitioner’s temporary disability benefits without regard to the Petitioner’s return to “other” employment.  Section 38 clearly says that the Respondent’s obligation to pay temporary disability benefits ceases when the Petitioner resumes work or is deemed permanently disabled. 

The appearance of a “windfall” for the Respondent is based upon a focus on “wage loss” and not “functional loss.”  New Jersey’s Workers’ Compensation statute is admittedly based upon the concept of compensating an injured worker for his or her residual functional loss.  Consequently, our statute does not include a category of payment of temporary partial benefits.  Temporary partial benefits, in a “wage loss” state, would look at this Petitioner’s “overall” wage loss and compensate him as a result of his inability to maintain the two income status that he held prior to his work-related injury.  Our statute, however, does not cover the Petitioner’s wage loss in this situation because our statute is, by design and legislative intent, primarily focused upon the premise of functional loss. 

Consequently, in this case, the Petitioner’s residual functional ability is not preventing him from resuming full time work for which he is being paid. If, the Petitioner finds, at some point, that he can not continue his light duty work with his 2nd employer as a result of his work-related injury, then he has not forfeited his right to Temporary Disability Benefits from this respondent.  However, at this time, the Court finds that the Petitioner is not entitled to temporary disability benefits from the Respondent.  

The Petitioner’s Motion to Enforce is hereby denied.

Date:___________________________     __________________________

                                                                   Hon. Ingrid L. French, J.W.C.