PATRICIA CONQUEST-BENSON v. CAMDEN BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6902-03T36902-03T3

PATRICIA CONQUEST-BENSON,

Petitioner-Respondent,

v.

CAMDEN BOARD OF EDUCATION,

Appellant.

___________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Hoens and R. B. Coleman.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Harvey C. Johnson, attorney for appellant (Laurence R. Palena, on the brief).

Sufrin Zucker Steinberg Sonstein & Wixted, attorneys for respondent (Paul W. Sonstein, on the brief).

PER CURIAM

The Camden Board of Education (the Board) appeals from an order of the Division of Workers' Compensation (a) denying its motion to modify the amount of an award of temporary disability benefits to petitioner, Patricia Conquest Benson, and (b) granting the cross-motion of petitioner for a penalty of twenty-five percent of the amount of the award of temporary disability benefits plus interest and counsel fees. The Board argues that the temporary disability benefits awarded petitioner in the Division's order dated April 13, 2004, were inflated because she had a ten month contract and would not have worked at the school during the three summers for which she was awarded benefits. In the alternative, the Board argues if petitioner would have been employed during those summers, her salary would have been significantly less than the amount she was awarded. We disagree and affirm.

Petitioner, a school security officer, was injured when she slipped on a marble and fell down a flight of concrete stairs. At the time of the injury, in April 1999, she had been an employee of the school district for about two years. During the prior summer she had accepted employment assignments from the school board as a security officer to work in its summer programs. She took all of the assignments that were offered to her during the summer of 1998. Following the injury, she had back surgery and eventually was cleared to return to light duty, but the Board refused to offer her light duty work and terminated her upon her inability to return as a full duty employee.

Following a trial in 2004, the Workers' Compensation judge awarded petitioner temporary benefits for the period from March 1, 2000 through August 2002, in the amount of $46,440. Three weeks later, the Board filed a motion for reconsideration, arguing she was not entitled to her full salary in the summer since she would have worked fewer hours. Therefore, it argued, the award represented a windfall. Although the Board conceded that she was entitled to $36,200 of the award, it failed to make any payment to her, prompting petitioner to cross-move for interest, penalties and attorneys fees as permitted by N.J.S.A. 34:15-28. The judge reopened the hearing to receive petitioner's testimony regarding her summer employment. The Board had no records of her pay or her hours during the summer of 1998, but argued that her work was minimal.

After the reconsideration hearing, the judge found that petitioner had worked and had been available to work all year round and therefore she was entitled to the previously calculated benefits. In addition, the court granted the application for interest, penalties and attorneys fees, since the Board did not receive nor even apply for a stay of the proceedings.

Our Supreme Court has held that an injured teacher is "entitled to workers' compensation temporary disability benefits during the summer if she can prove that she is unable to resume whatever type of work she otherwise would have had." Outland v. Monmouth-Ocean Educ. Service Comm'n, 154 N.J. 531, 538-39 (1998). See also Porter v. Elizabeth Bd. of Educ., 281 N.J. Super. 13, 21 (1995) (holding that teacher injured in the course of his summer employment was entitled to disability benefits throughout the summer since he normally worked during the summer). While Outland specifically dealt with a school teacher, we hold that Outland also governs any situation involving similarly situated school employees.

The facts of Outland were simply that a teacher who was injured in the course of her employment could not work in the summer due to the workplace injury. Outland, supra, 154 N.J. at 535-36. The Court acknowledged that, for most teachers, supplementing their school year income with summer employment is essential. Id. at 541. The Court determined that a reviewing court must identify the intent of the school employee. Id. at 542. If the employee can demonstrate that her workplace injury "caused her to lose income she could otherwise have earned from summer employment," then she is entitled to temporary disability benefits for the summer as well. Id. at 544. An employee who had no intention of obtaining summer employment, however, is not entitled to any benefits for the summer; to do otherwise would provide the claimant with a windfall. Id. at 542. But there would not be a windfall if the claimant's injury prevented her from performing her intended summer employment. Ibid. "On the contrary, to deny payments based on lost summer employment would frustrate the purpose of the workers' compensation system." Ibid.

In Outland, the Court dismissed the Board's argument that because the teacher received all the compensation she was due under the contract for the school year, she was not entitled to be compensated for summer work for which she was not under contract. Id. at 539. In other words, since the Board was not obligated to pay the teacher over the summer, it did not have to provide disability benefits. Ibid. The Court quickly dispensed with the Board's theory by illustrating that "if temporary benefits were payable only during the time that the contract of hire were to have been in existence, a seasonal worker, such as a farm laborer [suffering] an injury near the end of a harvest season, would receive no temporary disability benefits after the season was over," since the contract would have been completed. Ibid. The Court did not interpret there to be such a restriction present in the statute.

Instead, the Court held that "[t]emporary disability benefits are payable until the employee is 'able to resume work,' N.J.S.A. 34:15-12 and -38, not just until the contract for hire was to have expired." To hold otherwise, according to the Court, would allow "a callous employer [to] avoid all responsibility for temporary disability benefits to an at-will employee by asserting that it had, before the accident, planned to terminate the employee." Ibid. Since the employer did not owe any further compensation "under the employment contract (it would have been terminated), there would be no temporary disability benefits due to the injured worker." Ibid.

The Court observed that the "Legislature could never have intended that an employee's seasonal status would fortuitously shield an employer from its obligation to compensate for the loss of such a significant opportunity to earn income." Id. at 541. The Court dismissed the Board's assertion that "the sum of the salary [petitioner] received prior to her injury and her temporary disability benefits may not exceed the amount she was due to earn as income over the entire school year." Id. at 542. The Court held that even though under N.J.S.A. 34:15-37, a seasonal employee's benefits are based on the contract in place at the time of the accident, "a seasonal employee's aggregate recovery of workers' compensation temporary disability benefits has no necessary relationship to the aggregate amount due to him or her under the contract in force at the time of the injury." Id. 542-43. Lastly, in remanding the case, the Court only required the petitioner to prove that she lost summer income as a result of her injuries. Id. at 544. Thus, the Court did not require the petitioner to demonstrate how much she would have actually earned from her summer employment.

The present matter fits firmly within the holding of Outland. The Board's argument is identical to the argument the Outland Court rejected. Once petitioner demonstrated she was willing and able to work during the summer, the inquiry ends. To try to determine what she would have earned is irrelevant since it bears no relationship to what she receives as temporary disability benefits.

The example used in Outland is particularly instructive. A farm laborer will not work after the harvest is over - that is definitive. Yet, the contract does not control and the farm laborer is paid temporary disability benefits even after the end of harvest season. Here, we do not know how much petitioner would have worked in the summer, however, it is more likely she would have worked than it was that a farm laborer would work after harvest season. Applying the Outland principle, since petitioner had previously worked during the summer, had planned to work during subsequent summers, and was ready, willing and able to do so had the injury not prevented her from following through with that plan, she is entitled to receive temporary disability benefits based on the regular school-year pay scale. Outland, supra, 154 N.J. at 542.

The Board next argues that the trial court should not have awarded petitioner interest, a twenty-five percent penalty and attorneys fees since it filed a motion to modify the temporary disability benefits award. We do not read our decision in Amorosa v. Jersey City Welding & Machine Works, 214 N.J. Super. 130 (App. Div. 1986), so narrowly as to allow such an award only when a court's order was completely ignored. An available option to respondent was to seek a stay. It did not. The record reflects that the Board unreasonably withheld payment of the amount awarded that was not in dispute, $36,200. The Board completely ignored that part of the court's order.

The filing of a motion for modification does not stay or toll the running of the period provided in N.J.S.A. 34:15-28, which authorizes simple interest, penalties and attorneys fees at the discretion of the trial court when lawful compensation is withheld from an injured employee for a term of three months or more. Specifically, N.J.S.A. 34:15-28.1 provides for such an award under the following circumstances:

If a self-insured or uninsured employer or employer's insurance carrier, having actual knowledge of the occurrence of the injury or having received notice thereof, such that temporary disability compensation is due pursuant to N.J.S.A. 34:15-17 unreasonably or negligently delays denial of a claim, it shall be liable to the Petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the Petitioner as a result of and in relation to such delays or refusals. A delay of 30 days or more shall give rise to a rebuttable presumption of unreasonable and negligent conduct on the part of the self-insured or uninsured employer or an employer's insurance carrier.

The award of interest, penalties and attorneys fees was proper under the statute.

 
Affirmed.

(continued)

(continued)

9

A-6902-03T3

December 1, 2005