GRACELIN DUNKLEY v. COSTCO WHOLESALE CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GRACELIN DUNKLEY,

Petitioner-Appellant,

v.

COSTCO WHOLESALE CORPORATION,

Respondent-Respondent.

_________________________________

September 30, 2016

Argued September 13, 2016 Decided

Before Judges Leone and Vernoia.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2009-19887 and 2010-20172.

Pamela Brause argued the cause for appellant (Brause, Brause & Ventrice, L.L.C., attorneys; Peter Ventrice, on the briefs).

Francis W. Worthington argued the cause for respondent (Worthington & Worthington, attorneys; Mr. Worthington, on the brief).

PER CURIAM

Petitioner Gracelin Dunkley appeals two February 11, 2015 orders of judgment entered by a judge of compensation.1 She claims that the judge incorrectly calculated the compensation awards by denying her motion for reconstruction of her work week under the principles set forth in Katsoris v. S. Jersey Publ'g Co., 131 N.J. 535 (1993), and erred by denying petitioner's request for additional expert fees and costs. We affirm in part, vacate in part, and remand for additional proceedings in accordance with this opinion.

I.

In 1994, petitioner was licensed in the State of New Jersey as a certified nurse's aide and was employed in that position until her license expired in 2000. In 2000, she was licensed as a home health aide and employed at various times in that capacity until 2008. Petitioner's job duties as a certified nurse's aide and home health aide required her to wash, bath, dress, lift, pick up, and move ill patients as required. Between 2000 and 2008, petitioner was also employed at various times as a crossing guard in Lakewood Township and a toll collector at the New Jersey Turnpike Authority.

In 2008, petitioner was employed by respondent Costco Wholesale Corporation in its member services department working part-time, five hours per day, five days per week. Her duties included greeting customers upon their arrival, walking the floor of the facility on an hourly basis, and sweeping and mopping the floor as required. Petitioner was laid off in 2008.

In 2009, petitioner was rehired to a part-time position in the food court of respondent's facility. Her job duties included making pizza, lifting cooking equipment, working as a cashier, cleaning, mopping, sweeping, and removing containers of garbage. On April 27, 2009, while petitioner was cleaning the food court, she slipped on a wet floor and injured her neck and right shoulder. Her injuries required surgery and other medical intervention, and caused her to miss ten weeks of work.

On June 27, 2010, petitioner again suffered injuries to her right shoulder as she swept the floor while at work. Petitioner's injuries required surgery and resulted in her absence from work.2 Following her return to work, petitioner was again employed part-time and was assigned to the member services department where she greeted customers, walked the floor, and mopped and swept the floor when necessary. She testified she performed the mopping and sweeping duties with difficulty due to the injury to her shoulder.

Petitioner filed separate claims petitions for workers' compensation benefits for the 2009 and 2010 accidents.3 In respondent's answers to the petitions, it admitted that the accidents arose out of and in the course of petitioner's employment. The petitions were consolidated for a hearing before a judge of compensation.

Prior to the commencement of the hearing, petitioner filed a motion requesting that the judge "calculate the rate of compensation upon a reconstructed" forty-hour work week. Over the course of three days, the judge heard testimony presented by petitioner in support of her motion.

The evidence showed that the injuries sustained by petitioner during the two workplace accidents precluded her from lifting items and performing tasks requiring the repetitive use of her right shoulder. Petitioner testified that she was therefore unable to perform the duties of a certified nurse's aide and a home health aide. She also testified her injuries precluded her performance of the duties required in various full-time higher paying positions with respondent for which she claimed she was otherwise qualified. They included positions in the food court and kitchen, and as a cashier, butcher, and supervisor. Petitioner presented the testimony of an expert in the areas of orthopedics and impairment disability. The physician testified that petitioner's injuries precluded her performance of certain duties required by the various full-time positions for which she claimed she was otherwise qualified.

Petitioner testified that in August 2011, respondent increased her working hours and she became a full-time employee in the member services department. She received an increase in her hourly wage, additional vacation time, and the opportunity to obtain family medical benefits as a result of attaining full-time status.

Petitioner also testified that after becoming a full-time employee her injuries continued to prevent her from performing the duties of the other higher paying full-time positions with respondent for which she was qualified. Petitioner stated that because her injuries prevent her performance of the respective job duties of the higher paying full-time positions, she is limited to the performance of the duties and concomitant lower hourly wage of her current member services position.

Petitioner also explained that if the higher paying jobs became available, she would be required to bid for appointment to them. The jobs are awarded based upon longevity, which is determined by the number of accumulated hours an employee has worked for respondent.

Petitioner argued that she was entitled to a reconstruction of her part-time work week to a full-time work week under the principles set forth in Katsoris. The judge denied the request, finding that petitioner was not entitled to a reconstructed work week because petitioner became employed in a full-time capacity and made a higher hourly wage following the accidents that resulted in her injuries.4 The court then completed the hearing on the claims petitions, found that respondent's injuries resulted in a permanent partial disability, and rendered a compensation award on each petition without reconstructing respondent's work week. The judge also rejected petitioner's request for a discretionary award of fees for petitioner's expert under N.J.S.A. 34:15-64(c). The judge entered orders for judgment on February 11, 2015. This appeal followed.

II.

Our review of the "factual findings by a judge of compensation is limited." Renner v. AT&T, 218 N.J. 435, 448 (2014) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must determine "'whether the findings made could reasonably have been [16] 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." Close, supra,44 N.J. at 599 (citation omitted) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "However, 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Renner, supra, 218 N.J. at 448 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Petitioner first argues that the judge erred by denying her motion for a reconstruction of her work week under the principles established in Katsoris. She asserts that she was working part-time when her injuries were sustained, that the resulting permanent partial disability precluded her from performing the duties of full-time positions that paid higher wages, and that she was therefore entitled to a reconstruction of her work week for purposes of the calculation of her compensation award. She also claims that as part of the required reconstruction, the judge was required to use a different and higher wage than she was earning at the time the accidents occurred.

The parties do not dispute that Katsoris provides the applicable legal standard here. In Katsoris, the Court noted that "[t]he use of reconstructed work weeks is not a novel method for calculating compensation benefits for workers injured in part-time employment." Katsoris, supra, 131 N.J. at 540. Reconstruction of work weeks for purposes of calculating workers' compensation benefits is well established.5 The Court discussed the rationale for reconstruction of the work week that was addressed in Torres v. Trenton Times Newspaper, 64 N.J. 458 (1974). In Torres, the petitioner suffered a partial permanent disability during his part-time employment working seven hours per week delivering newspapers. Id. at 459. He earned $7.75 per week. Ibid. Our Supreme Court held that his compensation benefits should be calculated on a reconstructed weekly wage determined by applying the petitioner's actual hourly wage rate to a full-time forty-hour work week. Id. at 462.

The Court considered the petition in Torres under N.J.S.A. 34:15-37 (1966), and concluded that although the statute had "no specific provision for [a petitioner] . . . who works only a few hours a week in a part-time job and suffers partial or total permanent disability as a result of a work-connected accident[,]" the legislation was remedial and "should be given liberal construction in order that its beneficent purposes may be accomplished." Id. at 461. The Court found that part-time employees "must be presumed to have a potential for full employment" and that the statute requires "adequate compensation for the diminution of future earning capacity." Id. at 462. The Court held that under such circumstances it was appropriate to calculate a petitioner's compensation benefits upon a reconstructed full-time work week. Ibid.

In Katsoris, the Court was required to determine whether the enactment of the Workers' Compensation Act of 1979, N.J.S.A. 34:15-1 to -128, which "overhauled the statutory workers' compensation scheme," permitted the reconstruction of the work week for the calculation of compensation benefits for a petitioner who suffers a permanent disability. Katsoris, supra, 131 N.J. at 540-43. More particularly, the Court considered whether an amendment to N.J.S.A. 34:15-37, which "changed both the definition of a part-time employee and the calculation of compensation awards of such employees," had eliminated the reconstructed work week as a basis for the determination of compensation awards for part-time employees. Id. at 541.

The Court found that the amendment to N.J.S.A. 34:15-37 barred the use of a reconstructed work week for the calculation of benefits, but only for part-time employees who suffered temporary disabilities as the result of work related accidents. Id. at 544-45; see also McMonegal v. E & B Mgmt. Corp., 214 N.J. Super. 481, 484 (App. Div.) (noting that the 1979 amendment to N.J.S.A. 34:15-37 "outlawed" wage reconstruction for the "calculation of temporary disability payments under N.J.S.A. 34:15-12(a)"), vacated in part, 216 N.J. Super. 312 (App. Div. 1986), corrected, 217 N.J. Super. 18 (App. Div. 1987). The Court held that the statutory amendment did not bar reconstruction of the work week under the principles in Torres where, as here, a part-time employee suffers partial or total permanent disabilities as the result of work-related injuries suffered during the performance of their part-time employment duties. Katsoris, 131 N.J. at 543; see also McMonegal, supra, 214 N.J. Super. at 484 (holding that the amendment to N.J.S.A. 34:15-37 "left undisturbed the remainder of the statutory language . . . [that] authorize[d] wage reconstruction for calculation of wages for determination of benefits for partial permanent disability.").

The Katsoris Court also explained the standard for the utilization of a reconstructed work week for part-time employees who suffer a permanent partial or total disability. The judge must first determine if the petitioner "work[ed] fewer than the customary number of days constituting an ordinary week in the character of the work involved" at the time the injuries were sustained. Katsoris, 131 N.J. at 545 (citing N.J.S.A. 34:15-37). "That determination, however, does not end the matter." Id. at 546.

A judge must next consider whether the petitioner's disability "represents a 'loss of earning capacity, i.e., a diminution of future earning power'" or "whether the disability 'reaches into the future' and affects 'probable future earning capacity' or has an 'impact on probable future earnings.'" Id. at 547-48 (emphasis omitted) (quoting Torres, supra, 64 N.J. at 460-62). Thus, "[t]he critical inquiry is whether petitioner has demonstrated that her [or his] injuries, which disable her [or him] from engaging in part-time employment, have disabled or will disable her [or him] with respect to her [or his] earning capacity in contemporary or future full-time employment." Id. at 548.

Here, the judge erred by denying petitioner's motion for reconstruction of her work week without making findings of fact and conclusions of law under the Katsoris standard. The failure "constitutes a disservice to the litigants, the attorneys and the appellate court," Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976), and prevents proper appellate review. The judge did not make findings concerning whether petitioner worked fewer hours than the customary number constituting an ordinary work week in the character of the work involved at the time of her accidents. The judge also did not address or determine whether the disabilities suffered in each accident affected petitioner's probable future earning capacity or will have an impact on her probable future earnings.

The judge's rejection of petitioner's motion was based upon the singular finding that subsequent to the accidents that resulted in her disability, petitioner became employed in a full-time position at an increased hourly wage. The judge concluded that petitioner's subsequent full-time employment following the accidents required the denial of her motion. We disagree. As noted by the Court in Katsoris, even the fact that the petitioner was not disabled from performing her contemporaneous full-time employment did not "foreclose the calculation of benefits based on a reconstructed work week for an injured part-time employee." Id. at 547. Courts have consistently recognized reconstruction of work weeks for purposes of calculating compensation benefits for part-time employees holding contemporaneous full-time employment. Ibid. (citing Maver, supra, 34 N.J. at 477; Mahoney, supra, 20 N.J. at 443).

Because contemporaneous full-time employment does not require rejection of a request for reconstruction of a part-time employee's work week, we are satisfied that the judge erred in finding that petitioner's subsequent full-time employment alone warranted the denial of petitioner's motion. Petitioner's subsequent full-time employment at the higher hourly wage rate is relevant to her "future earning capacity," but it is not dispositive. Id. at 548. The judge may consider her subsequent employment to assess whether petitioner's injuries "have disabled or will disable her . . . earning capacity in . . . future full-time employment." Ibid. "[I]n cases involving permanent disabilities to part-time employees, the standard in calculating compensation benefits [is] . . . diminished future earning capacity." Id. at 549.

We are convinced that the judge erred in his application of the Katsoris standard and in failing to make the requisite findings of fact and conclusions of law under the standard.6 We are therefore constrained to remand the matter for a determination of petitioner's motion for reconstruction of her work week and, if appropriate, a recalculation of her compensation benefits.

Petitioner also contends that reconstruction of her work week should be based upon a higher hourly wage than the wage she was earning at the time of her respective accidents. We reject this assertion because compensation benefits for an employee suffering a partial permanent disability are based upon "the weekly wages received at the time of injury." N.J.S.A. 34:15-12(c); see also N.J.S.A. 34:15-37 ("'wages' . . . shall be construed to mean the money rate at which the service rendered is recompensed under the contract of living in force at the time of the accident"); Bush v. Johns-Manville Products Corp., 154 N.J. Super. 188, 194 (App. Div. 1977), certif. denied, 75 N.J. 605 (1978). Consistent with the statutory requirements, reconstruction of the work week for a part-time employee is calculated, where appropriate, by projecting a petitioner's actual part-time hourly wage rate at the time of the workplace accident to a full-time work week. See, e.g., Torres, supra, 64 N.J. at 462 (using petitioner's actual rate of pay at the time of the accident to determine his "actual weekly wages" based upon reconstructed forty-hour work week); Maver, supra, 34 N.J. at 446 (finding that the "first inquiry" in the reconstruction of a petitioner's wages was "the rate of pay at which he was compensated by respondent" at the time of the accident). If it is determined on remand that reconstruction of petitioner's work week is required, petitioner's benefits must be calculated based on the hourly wage that petitioner was earning at the time of the respective accidents.

Petitioner also contends that the judge erred by denying the request for an award of fees in excess of those required in N.J.S.A. 34:15-64. Petitioner concedes that the judge awarded the required fees as prescribed under N.J.S.A. 34:15-64(a) for her expert witness, an "evaluating physician," but contends that the judge erred by not exercising his discretion to award additional fees because the matter constituted "difficult litigation." We discern no support in the record for petitioner's position that the proceeding was unusually difficult or that the court abused its discretion by awarding the fees expressly set forth in the statute.

Those portions of the orders for judgment awarding fees and costs are affirmed. We vacate the judge's denial of petitioner's motion for reconstruction of her work week in each of the claims petitions, vacate the compensation awards, and remand for additional proceedings in accordance with this opinion. We do not retain jurisdiction.

1 On April 16, 2015, we granted petitioner's motion to consolidate the appeals of the orders of judgment.

2 The record does not reflect the time period petitioner was absent from work as a result of the injuries she sustained on June 27, 2010.

3 Petitioner was involved in a third work related accident and filed a separate claim petition related to her alleged injuries. The petition was dismissed as de minimis as part of the proceedings before the judge of compensation here and is not the subject of this appeal.

4 The judge also stated that he denied petitioner's motion for the "reasons" set forth in respondent's brief in opposition to the motion. Pursuant to our request, the brief was provided at oral argument. We need not address the propriety of a judge's findings that incorporate by reference reasons set forth in a party's brief because our examination of the brief reveals no basis for the judge's decision different than what he detailed in his decision on the record.

5 See, e.g., Maver v. Dwelling Managers Co., 34 N.J. 440, 442-43 (1961) (finding that a compensation award for a part-time employee must be based upon a weekly wage reconstructed by using the employee's actual hourly rate of pay for the customary number of hours in an ordinary week for those in the work involved); Knight v. Cohen, 32 N.J. 497, 499 (1960) (finding determination of petitioner's compensation award required reconstruction of work week based upon his actual hourly rate of pay, the customary number of hours in the petitioner's field of work, and the customary number of days in the work week); Mahoney v. Nitroform Co., 20 N.J. 499, 509 (1956) (finding that compensation awards for part-time employees should be based on the employee's actual wages converted into a "weekly wage"); Engelbretson v. Am. Stores, 49 N.J. Super. 19, 26 (App. Div. 1957), aff'd, 26 N.J. 106 (1958) (holding that part-time employee's compensation benefits must be calculated based on a weekly wage determined by "the regular or normal working day followed by the employer in the line or type of work in which the particular employee is engaged."); Krogman v. Krogman Filter Co., 89 N.J. Super. 16, 24-25 (App. Div. 1965) (holding that reconstruction of a part-time employee's work week was required to determine compensation benefits for injuries resulting in a permanent disability that prevented full-time work).

6 We do not express an opinion on the merits of petitioner's motion.