MARGARET ADAMS - v. TARGET STORES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4146-11T1

MARGARET ADAMS,

Petitioner-Respondent,

v.

TARGET STORES, INC.,

Respondent-Appellant.

________________________________________________________________

March 14, 2013

Argued January 24, 2013 - Decided

Before Judges Koblitz and Accurso.

On appeal from New Jersey Department of Labor & Workforce Development, Division of Workers' Compensation, Claim Petition No. 2005-10579.

Christopher B. Leitner argued the cause for appellant (Leitner, Tort, DeFazio, Leitner, Brause, P.C., attorneys; Nicholas Caruso and Mr. Leitner, on the briefs).

Henry L. Doner argued the cause for respondent (Law Offices of Doner & Castro, P.C., attorneys; Mr. Doner, on the brief).

PER CURIAM

Workers' compensation respondent Target Stores, Inc. (Target) appeals the decision by the Judge of Workers' Compensation denying its application for reimbursement from petitioner Margaret Adams for temporary disability payments paid prior to the determination that petitioner was permanently and totally disabled. Target also seeks a reduction of counsel fees due to this reimbursement, as well as an offset for Social Security Disability (SSD) payments received by petitioner. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Petitioner, who worked for Target since 1998, suffered a work-related injury to her left foot and ankle on October 27, 2004. She had a high school education, was forty-six years old and earned approximately $539 a week as a warehouse team leader, stocking shelves, climbing ladders and lifting up to fifty pounds. While stepping off a ladder, she missed several rungs and suffered a severe sprain and broken bone in her foot.

The compensation judge determined, based on undisputed medical testimony at trial, that as a result of this injury, petitioner "developed active Complex Regional Pain Syndrome" and Allodynia, "a hypersensitivity to touch that results in excruciating pain from even slight touch or contact."

After extensive medical treatment that was largely unsuccessful in relieving her pain, petitioner was deemed at Maximum Medical Improvement (MMI) on January 31, 2006. Thus, any treatment from that date forward would be palliative in nature and would not improve petitioner's ability to return to work. Petitioner never returned to work and the compensation judge found petitioner permanently and totally disabled, and rendered unemployable as of February 1, 2006. Although contested at trial, Target does not appeal this determination. Rather, Target seeks reimbursement of temporary disability payments.

Petitioner filed her claim petition with the Division of Workers' Compensation approximately six months after the injury. She received temporary disability payments from the accident until MMI.

When those payments terminated and she was still unable to return to work, petitioner applied for SSD benefits on March 10, 2006, shortly after her treating doctor's February 28, 2006 written report indicating the date of MMI as January 31, 2006. Her SSD application was approved nearly a year after petitioner applied for SSD benefits, retroactive to the date of the accident. Her SSD benefits were reduced by the temporary disability payments she had received previously.

I

Target argues that because, looking at the situation in hindsight, petitioner was totally disabled on the date of the accident, it should be reimbursed for all temporary disability payments made to petitioner. Targetseeks reimbursement from petitioner, who, it argues, could then seek to be made whole via reversal of that portion of the SSD decision that deducted the temporary disability payments from petitioner's SSD payment. Petitioner counters that Target's set-off entitlement did not accrue until the final judgment was entered establishing permanent and total disability.

As our Supreme Court has said in workers' compensation cases, the scope of appellate review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . ." Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (citations and internal quotation marks omitted), certif. denied, 140 N.J. 277 (1995). Deference must be accorded the factual findings and legal determinations made by the compensation judge "unless they are 'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

In particular, a reviewing court must defer to the findings of credibility made by the compensation judge, as well as to the judge's expertise in analyzing medical testimony. SeeKaneh v. Sunshine Biscuits, 321 N.J. Super.507, 511 (App. Div. 1999). See alsoKovach v. Gen. Motors Corp., 151 N.J. Super.546, 549 (App. Div. 1977) ("It must be kept in mind that judges of compensation are regarded as experts." (citation omitted)). In the presence of sufficient credible evidence, a compensation judge's findings of fact are binding on appeal, and those findings must be upheld "even if the court believes that it would have reached a different result." See Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citations omitted).

However, a compensation judge must "make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, [lead] to the conclusion" that the judge reached. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989) (citation omitted). The decision must contain more than a "mere cataloging of evidence followed by an ultimate conclusion of liability[.]" Ibid. (citation omitted).

Because of its remedial nature, the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, must be construed liberally. Wood v. Jackson Twp., 383 N.J. Super. 250, 253 (App. Div. 2006) (citation omitted). This court observed in Wood:

The Workers' Compensation Act (the Act) is humane social legislation designed to place the cost of a work connected injury upon the employer who may readily provide for it as an operating expense. . . . Thus, the Act has consistently been accorded liberal construction. That being said, the preference toward liberal construction must nevertheless be constrained by the plain meaning of the statute and the underlying purpose of the legislature.

[Id. at 253-54 (citations and internal quotation marks omitted).]

Temporary disability benefits are designed "to provide an individual who suffers a work-related injury with a 'partial substitute for loss of current wages.'" Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 428 (App. Div.) (quoting Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966)), certif. denied, 188 N.J. 492 (2006). "Generally, temporary disability continues until the employee is able to resume work and continue permanently thereat or until he [or she] is as far restored as the permanent character of the injuries will permit, whichever happens first." Id. at 427-28. (alteration in original) (quoting Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div. 1952)) (internal quotation marks omitted); see N.J.S.A. 34:15-12 (providing schedules of payments for temporary disability, total permanent disability and partial permanent disability); see also N.J.S.A. 34:15-38 (providing the method of calculating temporary disability).

Target argues that because, as it turned out, petitioner was permanently disabled in the accident, she was not eligible for temporary total disability benefits. In support of this argument, Target relies on two dissimilar cases. In Outland v. Monmouth-Ocean Education Service Commission, 154 N.J. 531 (1998), a teacher employed under a ten-month contract, who was injured at work during the school year, was deemed entitled to temporary disability benefits in workers' compensation during the summer recess period if she could establish that her work-related injury caused her to lose income she could otherwise have earned from summer employment. Idat 534, 538-39. The focus of this opinion was whether disability payments should continue over the summer when school is not in session.

The second case relied on by Target is Cunningham, where we held that an employee who returns to work after an injury, is terminated from employment, and subsequently suffers a disabling condition from the prior work injury must demonstrate that absent his disability he would have been working were it not for the disability. 386 N.J. Super.at 424, 432-34. Neither case is comparable to the situation here. Petitioner clearly would have been working at Target absent her work-related injury.

The compensation judge found petitioner's date of total disability when she was "rendered unemployable" to be February 1, 2006, the day after petitioner was deemed MMI. See Zabita v. Chatham Shop Rite, Inc., 208 N.J. Super. 215, 220 (App. Div. 1986) ("Total and permanent disability exists where a worker is 'rendered unemployable in a reasonably stable job market' after a work-related accident, 'notwithstanding that factors personal to the individual play a contributory part in such unemployability.'" (citations omitted)), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J. 139 (1987). Target recognizes that the Social Security Administration's determinations are not binding on the Workers' Compensation Court. The Social Security Administration has its own procedures to determine whether a claimant is entitled to SSD benefits. The federal administrative law judge must engage in a five-step sequential evaluation. See 20 C.F.R. 416.920(a)(4) (2012). Additionally, under 20 C.F.R. 404.408(a)(2)(i), when SSD benefits are awarded, the Social Security Act provides for an offset or reduction in benefits where:

The individual entitled to the disability insurance benefit is also, for that month, concurrently entitled to a periodic benefit (including workers' compensation or any other payments based on a work relationship) on account of a total or partial disability (whether or not permanent) under a law or plan of the United States, a State, a political subdivision, or an instrumentality of two or more of these entities[.]

Similarly, the Division of Workers' Compensation "ha[s] the exclusive original jurisdiction of all claims for workers' compensation benefits . . . ." N.J.S.A. 34:15-49(a). The judge of compensation presides over the dispute and adjudicates the claim in a summary manner. N.J.S.A. 34:15-57. The judge's decision is "final and conclusive between the parties . . . ." N.J.S.A. 34:15-58.

Target cannot now look in hindsight and state that Adams was always permanently disabled and should therefore not have received temporary disability payments. See Portnoff v. N.J. Mfrs. Ins. Co., 392 N.J. Super. 377, 381 (App. Div.) (noting that the judge of compensation found the petitioner totally and permanently disabled and awarded him 450 weeks of total permanent disability benefits commencing immediately after conclusion of a twenty-six week temporary disability award), certif. denied, 192 N.J. 477 (2007); Fiore v. Trident Constr. Co., 251 N.J. Super. 101, 102 (1991) (noting that the petitioner received temporary and permanent disability payments).

II

Target also argues that attorney fees assessed against it should be reduced. Attorney fees are set by the judge of compensation as a percentage of the judgment, with the maximum award being twenty-percent, as was awarded in this case. N.J.S.A. 34:15-64. Because we reject Target's first argument, we do not reduce the judgment by the temporary disability payments and therefore do not reduce the attorney fees for that reason.

Target also argues that its obligation to pay attorney fees on the permanency award should be discounted because of the offset for SSD payments. "N.J.S.A.34:15-64 reposes great fee allowance discretion in workers' compensation judges." Maskell v. Mid-State Filigree Sys., 322 N.J. Super. 68, 73 (App. Div. 1999). The judge of compensation rejected Target's SSD offset argument, relying on Fiore, supra, and Baracia v. Board of Trustees of State Police Retirement System, 420 N.J. Super. 1, 6 (App. Div. 2011), in which we held that attorney fees are not considered compensation to the petitioner for purposes of offset provisions.

We find no abuse of discretion in the compensation judge's decision to consider the entire judgment without regard to any SSD offset. This matter involved extensive litigation that persisted over many years. Target cites no legal authority for its proposition that the counsel fees should be reduced by the SSD offset.

In its reply brief, Target for the first time seeks to correct what it describes as "computational errors," indicating that it filed a motion before the judge of compensation that the judge did not hear due to this appeal. "We do not ordinarily consider an argument that is raised for the first time in a reply brief." Quigley v. Esquire Deposition Servs., LLC, 409 N.J. Super. 69, 74 (App. Div. 2009) (citation omitted), certif. denied, 201 N.J. 154 (2010), cert. denied, __ U.S. __, 130 S. Ct. 3473, 177 L. Ed. 2d 1057 (2010). We do not preclude Target from refiling its motion before the compensation judge to amend the judgment to correct clerical errors.

Affirmed.