NJ Superior Court – Appellate Division

Rosales v. State of New Jersey
373 N.J. Super. 29 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005)
Decided November 8, 2004
This Appellate Division case addresses the issue of whether Workers' Compensation benefits should be offset by an ordinary disability retirement based upon the same disability.  The Appellate Division affirmed the Judge of Compensation in holding that his findings of total disability were well-supported by the record.  However, the Appellate Division reversed the judge in holding that he erred in concluding that the petitioner’s workers’ compensation benefits need not be offset by the petitioner’s ordinary disability retirement benefits.

  Division Reserved Decisions

Sexton v. Insulation Contractors, Inc.  
01-18365; decided March 5, 2013 by the Honorable Ingrid French, J.W.C.
In his motion petitioner alleged he was entitled to benefit from an oral side agreement made with respondent’s carrier by which he would receive higher total permanent disability benefits based on the carrier’s willingness to settle his claim and take less than the two-thirds lien allowed by N.J.S.A. 34:15-40 on petitioner’s third-party action recovery.  The judge, however, denied petitioner’s motion and found that no enforceable oral agreement existed between the parties because there was no meeting of the minds as alleged. 

Kiessling v. Prudential Insurance Co.
93-32163 decided January 14, 2009 by the Honorable Stephen Tuber, J.W.C.
Respondent alleged that the petitioner was no longer totally and permanently disabled and had again become employable in light of various activities she was observed performing by neighbors and others.  However, the compensation judge disagreed and found that the objective medical evidence, when taken together with witness testimony, actually supported a finding that the petitioner remained totally and permanently disabled and was still not employable.

Robinson v. United Hospital Corp.
97-12763 decided November 14, 2008 by the Honorable Stephen Tuber, J.W.C.
Petitioner alleged total permanent disability that resulted from occupational exposures combined with pre-existing disabilities.  However, the compensation judge found the petitioner failed to present sufficient objective medical evidence to prove causation or aggravation of disability that was related to her employment with the respondent.

Simmons v. Federated Logistics 
03-3076 decided October 12, 2006 by the Honorable Stephen Tuber, J.W.C.
After being laid off in 2002, petitioner alleged a plethora of occupational disabilities were caused, aggravated, or accelerated by her exposure to fumes, dust, and noise when she worked packing clothes at the respondent’s facility. However, the judge found that the petitioner failed to prove the causal relationships alleged and dismissed the petitioner’s claim for permanent total disability.   

Harris v. State of New Jersey  
90-12805 decided on August 25, 2006 by the Honorable Renee C. Ricciardelli, J.W.C.
Petitioner suffered continual problems after fusion surgery for a work-related back injury. She claimed that, because her back condition had worsened after that surgery, she was now totally and permanently disabled.  After reviewing the objective medical evidence, as well as the petitioner’s testimony, the Judge of Compensation found that the petitioner met her burden of proving that her condition has worsened and that she was now totally and permanently disabled as the result of her original compensable injury. 

Horowitz  v. DZS Software Solutions 
04-19362; decided on November 4, 2005 by the Hon. Lawrence G. Moncher, J.W.C. 
Petitioner became permanently and totally disabled as the result of a tragic automobile accident.  Although the respondent’s carrier accepted petitioner’s claim and continued providing necessary medical care, an issue arose concerning the extent of alterations the carrier should make to the present home of the petitioner. Applying N.J.S.A. 34:15-15 and Squeo to the unusual facts presented by this case, the Judge of Compensation urged acquisition of a modern handicap accessible home (rather than massive reconstruction of petitioner’s present handicap inaccessible home) as the most reasonable way to accommodate the petitioner’s disability.  

Ricciardo v. Stroehmann/Maiers Bakery
01-7310 decided on April 15, 2005 by the Honorable Renée C. Ricciardelli, J.W.C.
Petitioner suffered a work-related back injury for which he underwent three surgeries.  Afterward, petitioner claimed he was totally and permanently disabled.  Respondent challenged petitioner’s claim of total disability and further alleged that, if petitioner was totally and permanently disabled, the Second Injury Fund was partly liable for compensating the petitioner because the disability was due in part to a disability that pre-existed the work injury.  After reviewing the evidence, the Judge of Compensation found that: (1) the petitioner was indeed totally and permanently disabled, and (2) the Second Injury Fund had no liability because the respondent failed to prove the alleged pre-existing disability.

Rosales v. State of New Jersey 
99-7099; decided April 13, 2005 by the Honorable Richard E. Hickey, III, J.W.C. 
In accordance with the opinion of the Appellate Division entered on November, 8, 2004, the judge calculated the offset against workers’ compensation benefits that the State of New Jersey can receive based on the ordinary disability benefits it pays the petitioner.  The judge applied the provisions of N.J.S.A. 43:15A-25.1, which sets forth specific provisions for determining the portion of the disability pension that can be offset against the workers’ compensation award. The judge also held that the Second Injury Fund can receive an offset based on either N.J.S.A. 34:15-40 or the ordinary disability pension payments made to the petitioner.     

Campana v. Evening Journal Assoc.
98-24694 decided March 10, 2005 by the Honorable Stephen Tuber, J.W.C.
Petitioner alleged total permanent disability based on an acute myocardial infarction and prior work-related accidents.  The compensation judge, after reviewing the objective medical evidence and taking notice of the fact that the petitioner is still steadily working (albeit at a new job doing different tasks), instead found 60% permanent disability (50% cardiac and 10% psychiatric).

Tejeras v. Kennedy Concrete
99-28097; 02-20675 decided February 28, 2005 by the Hon. Robert F. Butler, J.W.C.
Petitioner, a truck mechanic, injured his back in 1998 while trying to lift an air compressor.  He later worked in the same job for different employers and was required to continue lifting heavy objects. In his occupational claim, petitioner alleged that the subsequent lifting was the cause of a later need for surgery and his ultimately becoming totally disabled.  The Judge of Compensation found that: the petitioner was indeed totally disabled; the cause of his total disability was aggravation and exacerbation of the original back injury arising from the work petitioner did for his later employer(s); and allocation of liability between the later employers was not possible based on the medical evidence.  Hence, the petitioner’s last employer was held primarily liable for petitioner’s permanent total disability benefits.  

Gonzalez v. Colart Americas, Inc.
00-1290 decided February 23, 2005 by the Honorable Peter F. Womack, J.W.C.
After injuring his back lifting boxes at work, the petitioner did not return to work and essentially maintained that he was totally disabled.  The compensation judge disagreed and found that the petitioner was exaggerating his complaints and was unable to prove his disability was total and permanent. However, although the judge did not find that the petitioner was totally disabled, he did find that the petitioner presented sufficient evidence to merit an award of partial permanent disability.  (Note: The petitioner was ordered to repay the Division of Temporary Disability Insurance for that portion of its lien that exceeded the amount awarded by the judge as compensation for the period of temporary total disability.)

Ezell v. B.J. McGlone
89-49198; 99-31891; 00-8087 decided August 27, 2004 by the Hon. Andrew M. Smith, J.W.C.
Petitioner suffered disabilities of various kinds after he was injured on at least three occasions while working for three successive employers.  Many issues were raised by these consolidated cases, including: causation/aggravation, nature and extent of additional permanent disability, how liability for additional disability should be allocated among employers, and whether the petitioner was made totally and permanently disabled by the combined impact of the three successive injuries.  To determine how to affix liability where the successive injuries involved the same body part, the Judge applied the “full responsibility rule” discussed in Larson’s treatise.  To determine whether the petitioner was totally and permanently disabled, the Judge applied the “odd lot doctrine” and found the petitioner was not totally disabled. 

Livingston  v. United Airlines
00-4510; decided on August 23, 2004 by the Honorable Lawrence G. Moncher, J.W.C.  After hearing the testimony of a doctor during her trial, petitioner moved for a finding that she was permanently and totally disabled due to back and other injuries suffered as a result of a fall in a moving airplane.  The respondent argued that petitioner was only partially disabled.  After reviewing the testimony of the petitioner and four forensic medical examiners, as well as the records of treating physicians and other medical examiners, the Judge of Compensation found that the petitioner could no longer work and was permanently and totally disabled as a result of this accident.

Johnson v. Borough of Bradley Beach
96-4441; 99-10099 decided on June 28, 2004 by the Honorable Lawrence G. Moncher J.W.C. 
Petitioner’s claim that he was permanently and totally disabled due to multiple compensable injuries triggered a dispute between two insurance funds which covered the respondent during different time periods.  In addition, one fund raised an issue as to whether petitioner’s receiving an ordinary disability pension should reduce any future payments of periodic workers’ compensation benefits it may owe to the petitioner.  After deciding which entity was liable to pay for the petitioner’s lifetime medical expenses and total permanent disability benefits, the Judge of Compensation held that petitioner’s receipt of ordinary disability pension payments should not reduce future payments of periodic workers’ compensation benefits due to the petitioner.

Pino vs. County of Ocean
87-15748 & 88-28055, decided July 22, 2002 by the Honorable Lawrence G. Moncher, J.W.C.
Petitioner had a series of work related accidents and a subsequent non-work automobile accident. While petitioner claimed to be totally and permanently disabled from his employment disabilities, the judge of compensation found petitioner 70% permanently disabled from the work accidents and the automobile accident also contributed to his problems.

Florke vs. Visiting Homemaker’s Service of Ocean County
93-59367, decided July 16, 2002 by the Honorable Lawrence G. Moncher, J.W.C.
While the respondent agreed that petitioner was totally and permanently disabled, it contended that petitioner’s obesity was a pre-existing disability for which the Second Injury Fund should be held responsible. The judge of compensation denied Fund liability finding that the petitioner’s weight condition was not a disabling factor prior to the last compensable accident.  

Pristas v. Hamilton Township Water Pollution
93-1082, 93-32872, decided August 2, 2001 by the Honorable Renee Ricciardelli, J.W.C. 
Where respondent unsuccessfully appealed a decision, the workers’ compensation judge held that the filing of an appeal does not abridge a petitioner’s right to monies due.  The judge therefore granted petitioner interest on the award.  

Linke v. Freehold Dodge
97-044066, decided June 25, 2001 by the Honorable Andrew M. Smith, J.W.C.
The Second Injury Fund was dismissed where the workers’ compensation judge determined that the circumstances surrounding petitioner’s learning disability was an “odd lot” situation and respondent was responsible for the total disability award.  

Buitrago v. U.S. Fugi Electric, Inc.
95-30284, decided June 14, 2001 by the Honorable Joan L. Mott, J.W.C.
Finding that petitioner’s cardiac and psychiatric disabilities were causally related to a work accident, the workers’ compensation judge held that petitioner was totally disabled.  

Ciro v. Landis Shop-Rite
92-032427, decided November 21, 2000 by the Honorable Robert F. Butler, J.W.C.
While the parties disputed whether petitioner’s work injury to her head caused a physical injury to her brain or whether her complaints were a psychiatric problem, the workers’ compensation judge found that petitioner was totally disabled as a result of this accident even though it was difficult to separate petitioner’s psychiatric condition from her physical injuries.  

Arce v. M.P. Press, Inc.
90-58073, decided February 29, 2000 by the Honorable Lawrence G. Moncher, J.W.C.
The workers’ compensation judge found that the respondent was responsible for the total disability award and factors personal to the petitioner, such as poor education, low I.Q. and lack of English language skills, did not present pre-existing disabilities.  

Brady v. Robert Wood Johnson Hospital
90-50347, decided February 7, 2000 by the Honorable Philip Bolstein, J.W.C.
Petitioner suffered a compensable injury which the workers’ compensation judge found to be the cause of her total disability.  A later at-home accident was considered by the judge to be only an innocent aggravation of her condition.  Pre-existing diabetes was not held to be a disabling condition for Second Injury Fund liability.