DENNIS CUNNINGHAM, Petitioner-Respondent, v. ATLANTIC STATES CAST IRON PIPE COMPANY, Respondent- v.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0583-06T10583-06T1

DENNIS CUNNINGHAM,

Petitioner-Respondent,

v.

ATLANTIC STATES CAST IRON PIPE

COMPANY,

Respondent-Appellant

________________________________________________________________

 

Argued June 26, 2007 - Decided

Before Judges Parker and Seltzer.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. 2003-36542.

Wendy Johnson Lario argued the cause for appellant (Day Pitney, attorneys; Ms. Lario, of counsel; Ms. Lario and Frank A. Romano, on the brief).

Brian A. Roemersma argued the cause for respondent (Winegar, Wilhelm, Glynn & Roemersma, attorneys; Mr. Roemersma, on the brief).

PER CURIAM

This is the second appeal in this case in which we address the question of whether an employee who suffered a compensable injury, returned to full duty work and was later terminated for cause is entitled to temporary disability benefits after he was terminated. We previously determined "that an employee is not precluded from receiving temporary disability benefits under these circumstances. However, because temporary disability benefits constitute replacement for actual wage loss, the employee must prove that but for the disability he would have been employed." Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 425 (App. Div.), certif. denied, 188 N.J. 492 (2006). We reversed and remanded after concluding that the record was insufficient for us to make a determination on that issue. We stated:

If Cunningham can prove that he actually lost income on or after February 11, 2005, because of his disability, he is entitled to receive temporary disability benefits to that extent. To allow any more or any less would contravene N.J.S.A. 34:15-38 (temporary disability payable during [the] time employee is "unable to continue at work by reason of the accident" (emphasis added)), and the Outland [v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 540 (1998)] holding. In our view, on the record before us, the judge of compensation's order bestowed upon Cunningham a windfall. Because of the novelty of the issue, we follow the Court's approach in Outland and remand to the Division of Workers' Compensation to afford Cunningham an opportunity to prove actual wage loss.

[Cunningham, supra, 386 N.J. Super. at 433-34.]

We specifically noted that we could not determine from the record "whether [petitioner] made any efforts to seek employment before his visit with [his treating physician]" eight days after he was terminated. Id. at 434. We stated unequivocally, however, that when "he left his job (whether characterized as voluntarily or as a termination for cause in violation of a company policy he knew would result in termination), and, without new employment secured, he did so at his peril. His leaving was not related in any way to his disability." Ibid. We further suggested that the testimony of an occupational expert would be helpful to "provide evidence as to how long it would have likely taken [petitioner] to secure employment had he not been disabled." Ibid. We did not, however, require such expert testimony.

After the remand hearing on July 13 and August 3, 2006, the judge of compensation rendered her decision in a letter addressed to us in which she stated:

I understand from your decision that because the circumstances under which Cunningham left Atlantic were not directly related to his disability, you require a proof from him that he would have been able to get a job if it were not for his disability. As directed, I have held further proceedings and made additional findings of fact.

I find that Cunningham graduated from high school and has worked in construction, in warehouses, in fast food, and in retail. He has run cash registers and computers and driven forklifts. He managed a furniture store and handled inventory and shipping; he has supervised others and dealt with the public. Since he was sixteen, he has always been able to find work, leaving each job for a better one. Unfortunately, the areas in which he has the most experience all require either heavy lifting, standing for long periods, or both. He cannot perform these jobs with a damaged knee. Without the disability, he would certainly be working. Moreover, he would have received unemployment benefits while he was looking for a job.

When Cunningham's attorney advised me of the cost of bringing in an employment expert, I decided not to permit it. I consider that I have enough evidence on which to base my decision and I do not think expert testimony would add much. Employment experts are geared to finding jobs for people difficult to place: those who are disabled, uneducated, unable to speak English, etc. Except for his disability, petitioner has no other handicaps and has very marketable skills and experience. I cannot believe the experts would find otherwise than that he is readily employable.

As you may recall, I denied Atlantic's request for a stay of my order and Atlantic paid temporary benefits during the appeal. It risked little, since it could recoup its money from future permanency benefits. However, Dr. Helmold's original estimate of a return to work on August 1, 2005 proved to be overly optimistic. Petitioner was still receiving treatment as of July 2006 and has not yet returned to work. No benefits have been paid to him since your decision in June.

An order was entered on August 16, 2006 granting petitioner's motion for temporary disability from February 11, 2004.

The facts relevant to this matter are set forth in our published opinion. Cunningham, supra, 386 N.J. Super. at 424-26. Nevertheless, we summarize them briefly to give context to our discussion in this decision. Petitioner was employed as a machine operator for respondent in 2001. Id. at 425. On October 21, 2003, he injured his knee at work. Ibid. He was provided with workers' compensation benefits and returned to work on light duty. Ibid. Respondent's policy "provided that an employee would be terminated [if he or she] inexcusably failed to report to work for three consecutive days." Ibid. Petitioner failed to report to work for three consecutive days in November 2003 because he was incarcerated. Ibid. Respondent terminated his employment, but his union negotiated a "last chance" agreement which provided that he could retain his employment if he had no unauthorized absences for one year. Ibid. He returned to work on January 5, 2004 and was cleared for full work duty as of January 23, 2004. Ibid. He successfully completed the one year "last chance" agreement in January 2005, but immediately thereafter, was incarcerated again because of an outstanding traffic warrant. Ibid. When he called to advise respondent that he was in jail, he was told by respondent that "he would be terminated if he did not return to work within three days." Ibid. Three days later, petitioner arrived at work five hours after his scheduled shift began and he was terminated. Id. at 425-26.

Remarkably, respondent negotiated another "last chance" agreement with petitioner's union and petitioner was scheduled to return to work on February 2, 2005. Id. at 426. He was given a one-day extension to arrange for childcare. Ibid. On February 3, 2005, his first day back at work, he received a call at work indicating he would have to make other arrangements for the children because he had not paid the childcare provider. Ibid. He sought permission to leave work to place the children with a relative or friend and was informed by respondent that if he left work he would be terminated. Ibid. He did and he was. Ibid. Petitioner - after having been cleared for full work duty as of January 23, 2004 and successfully completing his first "last chance" agreement in January 2005 - then visited his treating physician on February 11, 2005 and was advised he could not work for six months. Ibid.

The issue before us in the previous appeal was whether petitioner was entitled to temporary disability benefits after he was terminated on February 3, 2005 and, as we indicated previously, there was insufficient evidence in the record for us to make a determination as to whether petitioner had made efforts to obtain appropriate employment after he was terminated.

In this appeal, respondent argues that (1) the judge of compensation failed to apply the legal standard required on remand; (2) the award of temporary compensation is not based upon credible evidence in the record; (3) the judge of compensation erroneously barred evidence of petitioner's use of illegal drugs which was relevant to the cause of his alleged wage loss; and (4) the decision was arbitrary, capricious and unreasonable.

In our view, the judge of compensation made several errors, which lead us to reverse her decision and remand once again for further proceedings.

First, we address respondent's argument that the trial court erroneously barred evidence of petitioner's use of illegal drugs. After the July 13, 2006 remand hearing, petitioner made available to respondent records indicating that he was treated for use of "heroin and other illegal drugs." At the August 3 continuation of the remand hearing, the respondent's counsel sought to use the treatment records to show that petitioner did not obtain employment because he was addicted to illegal drugs. The judge denied respondent's application, stating that respondent would have to show that the drug abuse affected petitioner's ability to work. We are at a loss to understand how respondent could make that showing without being able to cross-examine petitioner on his drug abuse, call petitioner's treating practitioners as witnesses or, if it chooses, have him and his records examined by their own experts.

The records indicate that petitioner was in treatment for drug abuse during the claimed disability period. They are certainly relevant to whether his drug abuse affected his ability to work after his termination. The judge took extensive testimony on petitioner's claim that he did not have enough money to feed his children and had to seek food from local churches. While this evidence was clearly not relevant to his ability to work or his eligibility for temporary disability, the evidence regarding his drug abuse was.

Respondent next argues that the judge of compensation did not apply the standard we established in our prior decision. Specifically, we sought evidence of what efforts petitioner made to seek employment after he was discharged. While petitioner gave extensive testimony as to his previous job experience, and stated that he applied for unemployment benefits the day after he was terminated, he gave no testimony with respect to his efforts to find a job after he was terminated. Considering that he was cleared for full work duties at the time he was terminated, there should have been no restrictions on his ability to obtain further employment. Nevertheless, he testified that on February 11, 2005, his treating physician determined he could not work for another six months.

We note here that petitioner's use of illegal drugs occurred during this period of claimed disability. We are, therefore, convinced that the record must be developed with respect to what effect, if any, his drug abuse had on his alleged disability and his ability to obtain gainful employment. None of this was explored during the remand hearing, although it seems obvious to us that these factual issues would affect the determination as to whether petitioner should have been eligible for temporary disability benefits after he was terminated when he had been cleared for full work duty. Id. at 434.

The record demonstrates that the judge of compensation was overly sympathetic toward and biased in favor of petitioner. We note that she repeatedly answered questions for him, favorably characterized his testimony and dwelled on the plight of his five children because he was unemployed - none of which is relevant to his eligibility. Since we are remanding the matter for further testimony and review of the evidence in light of petitioner's drug abuse, we urge the Department of Labor to assign the matter to a different judge. The second remand hearing shall be conducted in accordance with this decision and our reported decision at Cunningham, supra, 386 N.J. Super. at 423. All relevant evidence must be considered and the judge of compensation must render a decision as he or she would in any other case, rather than directing correspondence to us.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

The records indicate that petitioner drove to New Jersey from his home in Pennsylvania to obtain heroin. We cannot help but question how petitioner could afford a heroin habit when he did not have enough money to feed his children. That, however, is not relevant to his eligibility for temporary disability, either. It is relevant, however, that petitioner had been using illegal drugs for about two years before May 2006, when he first sought treatment.

(continued)

(continued)

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A-0583-06T1

July 11, 2007