BEFORE:

HONORABLE  EMILLE  R. COX

Supervising Judge of Compensation

APPEARANCES:

STARK & STARK, ESQS.

BY:          MARCI JORDAN, ESQ.

                ALFRED P. VITARELLI, ESQ.
                Attorneys for the Petitioner      

BRESSLER, AMERY & ROSS, P.C.

BY:           SEAN CALLAHAN, ESQ. (MICHAEL MORRIS, Legal Assistant)

                 Attorneys for the Respondent

This is the matter of Jose Soto v. Herr’s Foods, Incorporated, Claim Petition 2011-18325.  On June 15th, 2012 we had oral argument on a Motion for Temporary Disability Benefits, in this case supplemental temporary disability benefits, which has been requested by Counsel for Petitioner.

 For today’s purposes, Counsel, your appearances please.

MR. VITARELLI: Al Viterelli, Stark & Stark, on behalf of Jose Soto.

MR. MORRIS:     Michael Morris, Bressler, Amery & Ross, Legal Assistant to Sean Callahan.

THE JUDGE:    Thank you.  Be seated, please.

Today I am going to be rendering my decision in this matter.  The facts in this case are not complicated.  The Petitioner suffered a work-related knee injury on January 29th, 2011.  It was an accepted accident.  Respondent admitted compensability.  Petitioner underwent two authorized surgical procedures.  On February 20th, 2011 he had left knee arthroscopy, subacromial synovectomy, partial meniscectomy and chondroplasty.  On December 7th, 2011 he underwent another arthroscopy with debridement.  In January 2012 the authorized treating physician released the Petitioner to return to work light duty.  To quote from the doctor’s report:

I would like to start light duty and see if we can get him back to work, sedentary, four hours a day, and progress to eight hours.

At the time of his injury Petitioner earned a salary of $976.15 on average per week.  This entitled the Petitioner to a temporary disability rate of $683.31 per week.  Because of his reduced light duty hours, Petitioner’s net pay totaled $329.43 per week, less than half of the statutory minimum of $683.31 per week to which Petitioner is entitled.   Petitioner requested that Respondent remit the difference, that is, $353.88 per week required to bring Petitioner from his current net to his entitled rate.  Respondent refused, claiming that there is no statutory authority requiring that it make up the difference between the amount the Petitioner earned and his statutory entitlement.

There is no issue regarding Petitioner’s entitlement to temporary disability benefits in this case.  I need not review in detail the appropriate statute.  The true issue before this Court is the effect of Petitioner’s light duty earnings on his statutory entitlement.

As mentioned earlier, Respondent is of the opinion that since Petitioner has returned to work light duty, he is limited to the amount which he earns in that light duty capacity.  I disagree.  A temporarily totally disabled worker is entitled to temporary disability benefits of 70 percent of his or her wages subject to the yearly minimum and maximum limits.  This can be for a period of up to 400 weeks.  N.J.S.A. 34:15-12.  Temporary disability payments are obviously intended to alleviate the financial burdens placed upon an injured employee while that employee is out of work due to his or her work-related injury.  Where an injured employee is receiving active medical treatment, but is able to perform light duty work, the employer is required to provide such light duty work or continue to make temporary disability payments.  It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than the $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

As stated earlier, temporary disability is intended to provide Petitioner with an amount which the legislature has determined to be sufficient for his living expenses while temporarily disabled.  Light duty, on the other hand, provides the injured worker an opportunity to transition back to his or her regular job by performing less strenuous duties for his/her employer until such time as he or she is able to perform his or her regular tasks.  The emphasis here is the benefit of the program to the employee.  We cannot lose sight of the fact that this is workers’ compensation.  Respondent’s position here would turn this aspect of the program into virtually an employer’s compensation, since an employer in Respondent’s situation will benefit financially the longer Petitioner remains on light duty status.

In support of his position, Petitioner cites the case of Harbatuk v. S & S Furniture Systems, 211 N.J. Super. 614 (App. Div. 1986).  In that case, the Harbatuk petitioner was deemed eligible for temporary disability benefits despite the fact that he was able to perform some activities related to his hobby.  The Appellate Division held that such activity did not disqualify the petitioner from his entitled benefits.  The respondent did not offer petitioner any work related duties to perform and made no showing that such duties were available.

 While, as Respondent correctly points out, the facts of Harbatuk are not exactly as those before the Court, the significance of the Appellate Division’s holding in that case is the fact that the petitioner was available for light duty.  None was offered.  The Appellate Division determined that the petitioner was nevertheless entitled to temporary disability benefits.  The injured employee in Harbatuk would be in a better position financially than this Petitioner while not having had to work light duty.  In other words, this Petitioner, while working light duty for a few hours per week, is actually in a worse financial situation than the Petitioner in Harbatuk, who had no light duty offered to him and did not have to work.

 As I was saying, the employee in Harbatuk by virtue of not working light duty would be in a better position than the Petitioner in this case, who is diligent enough to return to his employer on a light duty basis.  I do not believe that this is what the legislature intended.  I disagree with Respondent’s contention that since the legislature took no steps to alleviate the financial hardship inherent in this Petitioner’s situation, this Court should not step in where the legislature failed to tread. 

The concept of statutory interpretation is not a novel one.  As Counsel for Respondent himself admitted at oral argument, the legislature cannot think of all of the nuances of a given piece of legislation.  Courts must routinely engage in statutory interpretation.  In so doing, we are obligated to interpret statutes in a manner that accomplishes the goals of the legislations in question.  See, e.g. Allen v V & A Brothers 28 N.J. 114 (2011) (In interpreting a statute, the court's role is to determine and effectuate the legislature's intent.)

Here, as I have stated clearly, the logical interpretation of N. J. S.A. 34:15-12 would require that the Respondent remit the difference between the amount earned by the Petitioner and the amount to which he is entitled by statute.

Finally, Respondent analogized this case to that of an individual receiving unemployment benefits.  This Court deems it a curious analogy. Looking at the manner in which unemployment benefits are administered by this Department, there are steps that are actually taken to alleviate such hardships.  In fact, in an effort to encourage persons on unemployment to pursue part-time or full-time work, that Division offers an incentive of 20 percent which is added to the amount to which the beneficiary may be entitled.  In order to encourage that process that Division produces a brochure which instructs the unemployed beneficiary:

If your weekly benefit rate is $200, your partial benefit rate will be $240, which is 20 percent higher than the $200.  If you earn $50 during a week, you would receive $190 in unemployment benefits.

In other words, that program clearly encourages the person receiving unemployment benefits to pursue employment and there is no negative consequence by such pursuit.  As I stated, this was an analogy that Respondent’s counsel made during the course of oral argument, and I found it rather curious because this suggests to me that the Division is actually encouraging individuals to pursue part-time employment and there is no negative consequences as the Respondent seems to be suggesting here.  The motion for the supplemental temporary disability benefits is granted.

Mr. Vitarelli, I’m going to ask that you prepare an Order that will reflect the payment for that supplemental temporary disability from the date that it was discontinued to the present and going forward.

 
MR. VITARELLI: Yes, your Honor.

THE JUDGE: Let that Order also reflect the fact that there will be a stenographic service fee of $275 for one day of hearing and today’s proceeding to be paid by Respondent to Jersey Shore Reporting Services.

                      Accordingly, the motion is granted.

                     Thank you, Counsel.

MR. VITARELLI: Thank you, your Honor.

THE JUDGE: You’re quite welcome.

                       (Decision concluded)