Benefits

In the past few years there have been several unreported cases in which the Appellate Division has found a violation of the due process rights of respondent.  McGory v. SLS Landscaping, A-4837-18T2 (App. Div. May 8, 2020) presents the first reported case in many years on the violation of a party’s due process rights, in this case the rights of the petitioner.

The facts of this case are very unusual.  Petitioner fractured his foot jumping from a loft on the premises of respondent after retrieving a bucket.  Petitioner, a young man, refused medical treatment offered by his supervisor, Nicole Caruso.   He later went to the hospital and sent a text message to Caruso stating that he would use his personal health insurance because he felt that the accident was his own fault. 

At the hospital petitioner was asked how he hurt his foot, and he said he fell off a roof cleaning the gutters at home.  In his affidavit in support of his motion for benefits, petitioner explained that he misrepresented the truth partly because he did not understand workers’ compensation and partly because he feared negative consequences at work for his conduct in jumping rather than using the ladder. 

According to his affidavit, when petitioner got home he discussed the accident with his parents, who explained how workers’ compensation worked and advised him to accurately report what happened.  He then tried to contact the medical provider to correct their records.  Respondent initially authorized care by a local surgeon, but later respondent denied the claim when it received medical records stating that petitioner injured himself at home. 

At the first hearing on 4-17-19 on a motion for medical and temporary disability benefits, the Judge of Compensation asked whether respondent would be filing a fraud motion to dismiss the case. Defense counsel answered in the negative. The Judge advised the parties that petitioner had a right to remain silent in the event of any fraud allegations.   The Judge of Compensation noted that petitioner’s counsel’s moving papers might constitute a prima facie case, and he advised respondent to produce its witnesses.

Respondent’s first witness was Sam Waddell, the owner of the company.  He said that he was not on the premises at the time, but his manager notified him by phone that petitioner jumped off the loft instead of descending a ladder.  The manager tried to persuade petitioner to see a doctor but petitioner declined.   Ms. Caruso testified next that she heard the sound of the impact on the ground but did not actually see petitioner jump.  She observed petitioner was in a great deal of pain and offered him medical care, which he declined.  Caruso completed an accident form.

The matter was adjourned until May 29, 2019, after the judge noted that he did not understand why petitioner had jumped and considered whether this might constitute horseplay.  The day before the May 29 hearing, respondent’s counsel filed a motion to dismiss for failure to sustain proofs.  At the May 29 hearing, the judge reconsidered whether this case constituted fraud on the part of petitioner.  The judge also questioned whether petitioner misrepresented that he was going to use his own personal medical insurance when his insurance was actually provided by Medicaid. The judge commented that it was not honest for petitioner to claim he was using his own insurance when it was taxpayer funded. 

Without any testimony by petitioner, the Judge of Compensation noted that petitioner had misrepresented the facts to the medical providers in stating that he had been injured cleaning his gutters at home and misrepresented having his own health care insurance. The judge dismissed the claim petition without prejudice commenting that petitioner was a multiple liar. The Judge further said to counsel for petitioner:  “If you can prove to me he’s honest, you can begin to present your case.  If you cannot prove to me he’s honest, then under the circumstances the motion to restore is questionable.”

Petitioner did not file a motion to restore the case and instead authorized his attorney to file a Notice of Appeal with the Appellate Division.   The judge scheduled the matter for another hearing on June 19, 2019.  Counsel for petitioner argued that there was no basis for further proceedings since the case had been dismissed on May 29, 2019 and no motion to restore had been filed.  Petitioner was in court and was ready nonetheless to testify.  The judge would not permit any testimony by petitioner because no motion to restore had been filed. 

On July 9, 2019 petitioner filed a Notice of Appeal of the May 29, 2019 dismissal without prejudice.  On July 10, 2019 the Judge of Compensation conducted the final hearing.  Petitioner’s counsel indicated that his client would not testify since the Notice of Appeal had already been filed. The Judge of Compensation then ruled on the case and the motion, dismissing both with prejudice and stating that petitioner’s conduct in jumping from the loft was not compensable as it constituted willful misconduct.

On appeal petitioner argued that his client had been denied his due process rights to testify and present evidence supporting his claim.  The Appellate Division agreed, adding that there was no requirement that a petitioner prove he is honest before giving testimony. 

The Court observed: “We have held that, in accordance with due process principles, the opportunity to be heard ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.”  The Court added, “The judge also erred by making credibility determinations and findings of fact on the merits of petitioner’s claims based solely on the judge’s interpretation of petitioner’s affidavit, without hearing petitioner’s testimony and after only hearing Caruso’s and Waddell’s testimony.” 

Finally, the Court criticized the judge for stating that the petitioner’s case did not rise to the level where consideration of the evidence was necessary. 

As a side matter, the Court also observed in a footnote that the May 29, 2019 order dismissing the claim petition was an interlocutory order because there was still an opportunity to restore the claim petition, citing Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997).

The Appellate Division reversed both the order to dismiss without prejudice and the order to dismiss with prejudice.  The Court remanded the case for further proceedings with a different judge.

The post Appellate Division Finds that Dismissal of Comp Case and Motion for Medical and Temporary Disability Benefits Violated Petitioner’s Due Process Rights appeared first on NJ Workers' Comp Blog.

Few scenarios generate more questions from clients than whether a carrier or third party administrator in New Jersey can cut off temporary disability benefits when an employee engages in part-time employment while receiving temporary disability benefits for the job-connected injury.   This is a much bigger issue than it was 30 years ago precisely because so many New Jersey employees have more than one job. Consider a situation where the carrier starts to pay temporary disability benefits to an injured worker but finds out a few weeks later that the worker has continued to work in his or her part-time job without losing any time from that second job. Should temporary disability benefits be stopped?

We begin the answer with the language in the statute under
N.J.S.A. 34:15-38, which states that temporary disability benefits must be paid
for days or fractions of days that the employee is unable to work.  Such benefits end when “the employee is able to resume work and continue permanently
thereat.”  Note that the statute does
not say “resume work at the injury-connected job.”  It simply says “resume work.”  The argument that many workers’ compensation
professionals make is that if an employee returns to work anywhere, temporary
disability benefits should cease.

There are no helpful reported cases on the meaning of “resume work.”   Not getting paid may be a factor according to a reported appellate division case entitled, Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495 (App. Div. 2005).  In that case the petitioner, the owner of the company, suffered work injuries leading to the receipt of temporary disability benefits.  She was released by her treating doctor to do light duty work but she said that she could not use her shoulder.  She used to do physical work at the gym which she owned, and said that there was no light duty work for her.  However, she admitted that she was in fact supervising operations at the gym without pay.  She was able to do this because it did not involve use of her injured shoulder.  The carrier stopped temporary disability benefits.

The Judge of Compensation found that temporary disability
benefits should not have been stopped solely because petitioner could supervise
activities at the gym.  The Appellate
Division affirmed the ruling in favor of petitioner, noting that the ability to
do light or intermittent work is not inconsistent with the receipt of temporary
disability benefits.  One key fact in
this case, however, was that petitioner was not being paid.  That makes
this case distinguishable from the question posed in this blog.

Let us next consider the unreported case of Morris v. Township of Washington, No. A-2374-99T2 (App. Div. January 16, 2001).  In that case, the holding was that an injured employee in receipt of temporary disability benefits could do some occasional part-time realtor work while recovering from his work injuries without losing his temporary disability benefits.  This case is much more on point to our question, but it is unreported and therefore not precedential.  The emphasis in this case was on occasional work being done by a part-time realtor, who did actually receive commissions from that work.

As in all legal situations, the facts are always
crucial.  If the injured worker who is
out of work is only making phone calls in the morning to call in substitute
teachers for his part-time job, most if not all judges would be likely to find
that temporary disability benefits should still continue.  Other judges may focus on the number of hours
involved in the part-time job or the physicality of the part-time job.  If the part-time job is physically demanding
for a person who is out of work and receiving temporary disability benefits,
that information would likely lead to cessation of benefits. In cases like
this, it is wise to send the information about the part-time job to the
treating doctor for his or her consideration. 
This information could bear on whether the employee has reached maximal
medical improvement.

One other factor that should be mentioned is whether the injured employee has denied working part-time only to be later found to be doing part-time work while receiving temporary disability benefits.  This fact pattern moves the case more to a more powerful argument of fraud or deliberate misrepresentation.  Adjusters and treating doctors should ask at the outset if the employee does have a part-time job and if the employee is performing that work during the treatment phase of the case.  Counsel for petitioners often point out that their clients are not aware that they are doing anything wrong by continuing in their part-time employment, particularly if the work is not physical.

The best argument for employers is that temporary disability benefits should not be available for someone who is found to be working a substantial number of hours in a part-time or near full-time second job.  Frankly, it is an unsettled area of law. When the right case reaches the appellate division or Supreme Court, greater guidance will emerge for practitioners.  Most employers and adjusters are very practical in responding to this situation.  They realize that doing a few hours of week of a non-physical nature will not be viewed the same by the judge as working 20 or 30 hours per week in a second job while receiving temporary disability benefits.

The post Does An Employer Owe Temporary Disability Benefits When An Injured Worker Returns To A Second Job But Is Unable To Return To The Injury-Connected Job? appeared first on NJ Workers' Comp Blog.

Effective June 17, 2019, N.J.S.A 34:15-95.6 became law in New Jersey.  This law applies to dependents of public safety workers, who are defined as officers of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police or a first aid or rescue squad.  The purpose of this law is to increase dependency benefits for those who received awards after December 31, 1979.  The statute calls these benefits “supplemental benefits” not COLA benefits.

The statute does not require the supplemental payments to be
retroactive to the time of the original award. 
Rather the Act is prospective. 
Beginning on January 1, 2020, and in each fiscal year thereafter, the
dependent of a public safety worker will begin receiving supplemental benefits.
 There is a formula outlined below which
attempts to create a parallel percentage between the rate of benefits and the
max rate in effect at the time of the award with the current max rate. Bear in
mind that before 2004, one dependent received only 50% of the decedent’s wages,
not the current 70%.

b. The base amount of
the weekly supplemental benefits to be paid pursuant to this section during
each fiscal year shall be calculated in a manner so that when it is added to
the workers’ compensation weekly death benefits initially awarded, the sum of
the initial award and the base weekly supplemental benefits shall bear the same
percentage relationship to the maximum workers’ compensation death benefit rate
for the current fiscal year that the dependent’s initial weekly death benefits
bore to the maximum workers’ compensation death benefit rate in effect at the
time of the death;

This supplemental benefit is designed to be paid by the Second Injury Fund, not by the employer, carrier or TPA. This law affects public employers of all kinds. The most challenging aspect of the law pertains to notice because there may be dependents potentially eligible for supplemental benefits living in many states.  They are not likely to know about this law change.  Therefore the statute provides as follows:

d. An insurance carrier or self-insured employer responsible for the payment of workers’ compensation death benefits to a dependent shall notify the Division of Workers’ Compensation of the need to have the Second Injury Fund make supplemental benefit payments to the dependent pursuant to this section not later than the 60^th day after the date on which it is determined that the payment of supplemental benefits is required pursuant to this section.  If the insurance carrier or self-insured employer fails to notify the division and that failure results in the payment of an incorrect amount of benefits, the liability for the payment of the supplemental benefits shall be transferred from the Second Injury Fund to the employer until the time at which the insurance carrier or self-insured employer provides the required notice.

Thanks to attorney Steve Cohen, Davis Saperstein & Salomon, P.C., for calling to our attention various issues surrounding this law, including practical problems in providing notice.  Carriers and third party administrators must find a way to identify dependency cases that are currently being paid and that fit the time periods in this Act.  Mr. Cohen also points out that in section b above, the statute refers to “death benefits initially awarded.”  It is unclear whether this provision applies to cases where the carrier or third party administrator voluntarily accepted the case and started making dependency payments without the case ever going through the Division of Workers’ Compensation.  In those situations, there would not even be an award.  Carriers, third party administrators and Joint Insurance Funds generally should consult counsel for advice in complying with this law and its notice provisions. 

This new law does not apply to those who are entitled to receive special adjustment benefits pursuant to N.J.S.A. 34:15-95.4.  In addition, it should be noted that there may be a reduction of benefits by an amount equal to the dependent’s benefits payable under the Federal Old-Age, Survivors’ and Disability Insurance Act, excluding disability benefits paid under that act.

The post Notice to Carriers, TPAs and Joint Insurance Funds: Requirements of New Supplemental Benefits Law For Dependents of Public Safety Workers appeared first on NJ Workers' Comp Blog.

On February 25, 2019, the New Jersey Legislature voted to send to the Governor’s desk Senate Bill No. 1967.  The Senate passed the bill on October 29, 2018 and the General Assembly passed it on February 25, 2019. The Governor is expected to sign the bill shortly.

The original bill was intended to provide a cost of living (COLA) for all workers rendered totally and permanently disabled, or to the dependents of workers, who died as a result of a workplace injury after December 31, 1979.  The stated purpose of the legislation was to mirror the Special Adjustment created in the 1979 amendments for that same class of workers injured or killed before December 31, 1979, (RS. 34:15-95.4).  The bill was amended to limit the payment to Public Safety Workers or their dependents in the case of work-related death from workplace injury.

The legislation defines Public Safety Workers in paragraph 4(e): “For the purpose of this section, ‘Public Safety Worker’ means a member, employee, or officer of a paid, partially-paid or volunteer fire or police department, force, company or district, including the State Police or a first aid or rescue squad.”  Note that this definition does not include hospital EMTs or private fire departments at large plants operated by the private sector.

Funding for the special adjustment comes from an increase in the assessment for the Second Injury Fund which is levied on insurance premiums payable by private employers for their workers’ compensation policies.  A like assessment is made on self-insured companies.  These assessments affect only private sector employers.  The State of New Jersey and its subdivisions are not liable for the Second Injury Fund assessment.  Therefore, the funding is collected from the private sector for which the benefits do not apply.  This results in the bill having no fiscal impact on the state or local budgets, but it will have a fiscal impact on private employers.

Those covered by this bill will be eligible for the special adjustment as of July 1, 2019 but not retroactive to the date of the award of Total Permanent Disability or death of the “Public Safety Worker.”  Going forward, the public employer shall identify those eligible and report them to the Office of Special Compensation.  The public employer will continue to pay at the rate set at the time of the award of permanent disability.  The Second Injury Fund, Office of Special Compensation will pay the amount sufficient to bring the total award to the same percentage to maximum rate for the current year.

Example:        Police officer is injured and deemed totally and permanently disabled as of July 1, 2002.  The officer is earning wages of $900 per week and the maximum rate for permanent total disability is $629 per week in 2002.  The officer receives an award payable at $629 per week for 450 weeks and continuing so long as the officer is permanently disabled under the terms of N.J.S.A. 34:15-12b. (Officer’s salary is sufficient for the maximum rate in 2002).  Effective July 1, 2019, the officer will be paid $629 per week by the employer and will receive $292 per week from the Second Injury Fund by way of the Special Adjustment bringing the officer to the maximum rate for 2019.  Because the officer qualified for the maximum rate at the time of the award, the officer is eligible for the maximum rate in the year of the special adjustment.

The COLA will be reduced for beneficiaries to the extent necessary to ensure that inflation adjusted benefits do not cause a reduction of Federal Social Security disability benefits. COLA benefits are also to be reduced by the original amount of any Social Security benefits (but not the amount of any Social Security disability benefits and any subsequent cost-of-living increase in Social Security benefits), Black Lung benefits, or the employer’s share of disability pension payments received from or on account of an employer.

The COLA will be denied to an otherwise eligible Public Safety Worker who is also eligible for SSD but will not apply.  In virtually all cases, the Public Safety Worker will be eligible for an Accidental Disability Pension, and the Division of Pensions and Benefits will take the offset.

The post New Jersey Legislature Passes Supplemental Benefit for Certain Public Employees or Dependents of Those Employees appeared first on NJ Workers' Comp Blog.

Can a Judge of Compensation order a respondent to pay temporary disability benefits without a motion being filed in the first place?  The answer is no according to the decision in Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017).

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015.  She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016.  During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above.  Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014.  AHS accepted the case as compensable.  Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016.  Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016.  The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident.  He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016.  Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compenstion indicated that he was inclined to enter an order for payment of temporary disability benefits.  Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner.  Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace.  Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.    The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits.  The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits.  Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”  The Court added, “The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition.  Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

While the technical rules of evidence may be relaxed in workers’ compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights. Id. At 95-96.  Atlantic was not given the opportunity to proffer any medical records or reports, call witnesses, or submit any evidence in opposition to petitioner’s claim.  Based on the foregoing, we find that Atlantic was denied a meaningful opportunity to be heard in accordance with the due process principles.

The Appellate Division also concluded that the rule applied in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006) requiring claimants to prove that they were both available and willing to work and would have been working if not for the disability.  The Court noted that petitioner had been terminated well before the order was entered in the first listing of the case.  The Court also observed that petitioner had in fact returned to work for six months after the October 12, 2014 incident, a fact which Dr. Nayak seemed unaware of.  Further, the petitioner herself never sought temporary disability benefits nor filed  a motion for benefits.  The first time there was any mention of petitioner requiring temporary disability benefits was when her attorney produced the report from Dr. Nayak in court, several months after petitioner had been terminated for not returning to work.

Dr. Nayak’s letter did not address petitioner’s ability to work in a different capacity or perform light duty assignments.  Dr. Nayak did not testify before the Workers’ Compensation judge or provide an affidavit in support of petitioner’s claimed disability.  Dr. Nayak’s letter does not explain how petitioner was able to return to work for six months after the October 2014 incident but was unable to return to work in June 2016.  More importantly, petitioner did not testify or present evidence that she suffered a wage loss as a result of her disability because she was available and willing to work and would have been working if not for the disability.

 The Appellate Division concluded that the petitioner failed to demonstrate any entitlement to temporary disability benefits.  Therefore the Court reversed the decision of the Judge of Compensation.   This case is significant because it emphasizes how important it is to allow due process to the parties in a workers’ compensation claim.  Further, it underscores the solid principles outlined in the Cunningham case.

This case was successfully handled by the Capehart team of Stephen Fannon, Esq. and John Pszwaro, Esq., who successfully argued before the Appellate Division.

After decades of confusion over the issue of paying temporary disability benefits to volunteer firefighters who have no outside jobs, practitioners finally received an answer from the Appellate Division in Kocanowski v. Township of Bridgewater, A-3306-15T2, (App. Div. December 11, 2017).

The case involved a volunteer firefighter with the Finderne Fire Engine Company in Bridgewater Township.  Petitioner was responding with her company to a multi-alarm fire in March 2015 when she slipped and fell on ice, breaking her right fibula. The injury led to several surgeries over the next year.  Petitioner had not worked since 2013 when she began taking care of her father, who had serious health problems. In 2014, she resumed working as a volunteer firefighter in an unpaid capacity.

Petitioner filed a motion for medical and temporary disability benefits.  She asserted that she was entitled to temporary disability benefits at maximum rates under N.J.S.A. 34:15-75. The Township argued that no temporary disability benefits were required because petitioner really had no wage loss. She had not worked since 2013.  The Judge of Compensation ruled for respondent, and petitioner appealed.

The Appellate Division methodically explained why the Judge of Compensation was correct in dismissing the claim for temporary disability benefits.  First, the Court cited to N.J.S.A. 34:15-38, which states that temporary disability benefits are due the day that the employee is first unable to continue at work by reason of the accident.  Petitioner argued that Section 75 creates a different right for volunteer firefighters because it states that compensation for any volunteer fireman must be based upon a weekly salary or compensation that is conclusively presumed to be the maximum allowed under the New Jersey Workers’ Compensation Act.

The Court agreed with respondent that there must first be proof of a wage loss before Section 75 is referenced.

Kocanowski’s claim is at odds with the underlying reason for awarding temporary disability, which is to replace lost wages.  It is at odds with the method for calculating temporary disability, which is to consider weekly wages.  When the legislature enacted the provisions that addressed firefighters and others, it did not make any special provisions for calculating temporary disability in a different way.

The Court ruled as follows:  “We agree with the compensation judge that although a volunteer firefighter is entitled to temporary benefits at the maximum rate and that the seven-day waiting period does not need to be served, there first must be an entitlement by the volunteer to payment of temporary disability benefits.  That payment depends of proof of lost wages.”  In other words, one does not get to  the maximum benefit rate contained in Section 75 unless the volunteer can prove an entitlement to temporary disability benefits.

This case was expertly handled by Jennifer A. Cottell, Esq. of Cooper, Cottell & Taylor, LLC.  Ms. Cottell not only won the case at the Division level and on appeal but she successfully defeated an amicus brief filed by COSH on behalf of the petitioner.

The case of Apperman v. Visiting Nurse Association of Westfield, A-5446-15T3 (App. Div. October 30, 2017) presented an unusual situation where a carrier agreed to pay benefits that exceeded its obligation under the statute.  The case involved the tragic death of Phyllis Apperman who died in a motor vehicle accident in December 2003. The claim was accepted by New Jersey Manufacturers, which agreed to pay dependency benefits to Eric Apperman, the decedent’s husband, and Harold Apperman, a 34-year-old son who was legally incapacitated.

Dependency payments to Eric Apperman ended when he remarried.  In 2007 at the time of settlement, NJM’s counsel stipulated to the following terms in respect to benefits for the incapacitated son:

However, we are here today as he has requested benefits for his son as a dependent, and we do stipulate that the son is incompetent and should receive dependency benefits at the amount of fifty percent of Phyllis Apperman’s wages of $800.  So, he will get $400 per week for 450 weeks and continuing as long as he remains incompetent.  Payments shall date back to March 4, 2005.

The Judge of Compensation entered an order stating that the son’s dependency benefits “shall continue for 450 weeks and shall be paid thereafter pursuant to N.J.S.A. 34:15-12(b) et seq.”  When the 450 week period ended, NJM correctly stopped payments based on the language of the statute which limits payments to 450 weeks for adult children who are incapacitated.  Eric Apperman then appealed the denial of benefits past 450 weeks in part based on the agreement made by NJM counsel at the time of settlement.

The Judge of Compensation heard the motion of petitioner’s counsel to enforce the prior agreement and ruled that NJM’s agreement to pay beyond 450 weeks was a mistake of law.  Therefore, the Judge of Compensation ruled against Apperman, who then filed an appeal.

The Appellate Division first examined the precise language of N.J.S.A. 34:15-13, which states that “payments to such physically deficient persons as are for such reason dependent shall be made during the full compensation period of 450 weeks.”  The statute further states that benefits for dependents under age 18 shall continue until they reach the age of majority.

In this case, the Appellate Division held that payments for those under age 18 can continue for over 450 weeks until the age of majority, but payments for an adult person who is mentally incapacitated are limited to 450 weeks by statute.  The Court further said, “Neither party has cited any authority, nor have we found any, that would confer jurisdiction on the Division of Workers’ Compensation to sanction the payment of dependency benefits for a period exceeding that authorized by statute.”

To petitioner’s argument that NJM had previously agreed on the record to make payments beyond 450 weeks, the Court responded that a Judge of Compensation does not have authority to enforce an order that would extend benefits beyond statutory limits. The Court said that the Division of Workers’ Compensation lacks equitable powers.  Finally, the Court noted that it was sympathetic to the plight of petitioner since he remained incapacitated, but any change in the law must be effected by the Legislature.

This decision is noteworthy because there are so few cases involving dependent adults who are incapacitated and also few cases involving mistakes of law.  The ruling is correct that a Judge of Compensation is limited to his or her statutory powers.  For example, if there is no jurisdiction in New Jersey, (no accident, no contract and no employment in New Jersey), the Judge cannot hear the case even if the parties agree to present it in New Jersey.  Similarly, when a claim is time barred, even if the respondent agrees to waive the statute, the Judge cannot hear the case, because powers of the Judge of Compensation are limited to claims timely filed in the Division.