ERIC APPERMAN v. VISITING NURSE ASSOCIATION OF WESTFIELD

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-5446-15T3

ERIC APPERMAN,

        Petitioner-Appellant,
v.

VISITING NURSE ASSOCIATION
OF WESTFIELD,

        Respondent-Respondent.


              Argued October 11, 2017 - Decided October 30, 2017

              Before Judges Yannotti, Carroll and Leone.

              On appeal from New Jersey Department of Labor
              & Workforce Development, Division of Workers'
              Compensation, Claim Petition No. 2004-12557.

              Pablo N. Blanco argued the cause for appellant
              (Livingston DiMarzio, LLP, attorneys; Mr.
              Blanco, on the brief).

              David P. Kendall argued the cause for
              respondent    (New    Jersey    Manufacturers
              Insurance Co., attorneys; Ann DeBellis, of
              counsel; Mr. Kendall and Brittney Kern, on the
              brief).

PER CURIAM

        In this workers' compensation case, the judge of compensation

interpreted 
N.J.S.A. 34:15-13 to limit the payment of dependency
benefits to an incapacitated adult child to 450 weeks.          On appeal,

petitioner Eric Apperman challenges that interpretation, which

resulted in the denial of his application to enforce a settlement

order that would have continued benefits to his disabled adult son

beyond the statutory 450-week period. For the reasons that follow,

we affirm.

                                    I.

     The essential facts are undisputed.           Phyllis Apperman was

employed   by   respondent   Visiting     Nurse   Association    when   she

tragically died in a motor vehicle accident in December 2003.

Respondent was insured by New Jersey Manufacturers Insurance Co.

(NJM) for workers' compensation and admitted the fatal accident

was work related.

     Phyllis was survived by her husband, Eric, and their adult

disabled son, Harold.    Harold was thirty-four years old when the

accident   occurred,   and   had   been   adjudicated   an   incapacitated

person in 1988.

     Eric Apperman filed a claim petition in April 2004, seeking

dependency benefits for himself and Harold.         The parties reached

a negotiated settlement on February 23, 2007.            On the record,

NJM's counsel stated:

           Your Honor, this is a dependency claim where
           dependency benefits had been paid to [Eric]


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            who has since remarried and his claim has been
            completed.

            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.

            [(Emphasis added).]

     The    compensation   judge   entered    an   order   approving   the

settlement.   The order contained an executed addendum stating that

Harold'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."

     NJM terminated Harold's dependency benefits on October 17,

2013, after 450 weeks of payment.            On February 25, 2014, NJM

notified Eric that "[n]o further benefits are payable at this

time."

     Eric then filed an application to enforce the order of

settlement and compel NJM to resume payment of Harold's dependency

benefits.     Eric argued that the terms of the settlement were

specifically negotiated to protect Harold for life, and that both

parties interpreted the dependency statute to provide for lifetime

dependency benefits.    NJM opposed the application, arguing it had

no legal obligation to pay dependency benefits past the statutory


                                    3                             A-5446-15T3
450-week period, and that inclusion of the language regarding

continued benefits thereafter was a mistake of law.

     Because   the   compensation       judge    who    approved    the     2007

settlement   had   retired,   the   matter      was    assigned    to   another

compensation judge, who denied the application.               In a detailed

written opinion, the judge found that 
N.J.S.A. 34:15-13 controlled

the payment of dependency benefits, and "reveal[ed] no provision

whatsoever for the extension of the 450[-]week dependency benefit

period for a disabled child."       Although the judge was "persuaded

that the plain language of the statute as written does not provide

for [lifetime] dependency benefits to an incapacitated child," she

looked to the legislative history of the Workers' Compensation Act

since its initial adoption in 1911.          The judge "conclude[d] that

the [L]egislature has repeatedly amended this statute to increase

benefits. None of these amendments address[] the issue of lifetime

benefits for incapacitated children . . . [and] there was no

legislative intent to create such a benefit."

     The compensation judge further noted that 
N.J.S.A. 34:15-

12(b) addresses benefits payable to an injured employee and not

his or her dependents.    As such, the judge found the reference to

that statute in the addendum to the settlement order was erroneous,

and "that NJM's agreement to pay dependency benefits to Harold



                                    4                                   A-5446-15T
3 Apperman post the 450 weeks and continuing as long as he remains

incompetent was a mistake of law."         This appeal followed.

                                     II.

     Our review of 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)).   "However,

'interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference.'"

Ibid.   (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,


140 N.J. 366, 378 (1995)).       Both parties agree that this case

turns on an issue of law, namely the interpretation of 
N.J.S.A.

34:15-13(i) and (j) regarding the payment of dependency benefits

to an incapacitated adult.      Accordingly, our review is de novo.

Williams v. Raymours Furniture Co., Inc., 
449 N.J. Super. 559, 562

(App. Div. 2017) (citing Sentinel Ins. Co. v. Earthworks Landscape

Constr., L.L.C., 
421 N.J. Super. 480, 485-86 (App. Div. 2011)).

     In determining the meaning of a statute, as we are required

to do here, the first step is always to consider its plain

language.    Oberhand v. Dir., Div. of Taxation, 
193 N.J. 558, 568

(2008).    We construe that language in light of the entire statute

and the overall statutory scheme.            Cty. of Bergen Emp. Benefit

Plan v. Horizon Blue Cross Blue Shield of N.J., 
412 N.J. Super.
 126, 132 (App. Div. 2010).      "When the language in a statute 'is

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clear   and     unambiguous,      and     susceptible    to    only     one

interpretation,' we presume the Legislature meant what it said and

that the plain meaning governs."          Ibid. (quoting Burnett v. Cty.

of Bergen, 
198 N.J. 408, 421 (2009)).

     
N.J.S.A. 34:15-13, in pertinent part, provides:

          (i) In computing compensation to those
          [dependents] named in this section . . . only
          those under 18 or over 40 years of age shall
          be included[,] and then[,] only for that
          period in which they are under 18 or over 40;
          provided, however, that payments to such
          physically or mentally deficient persons as
          are for such reason dependent shall be made
          during the full compensation period of 450
          weeks.

          (j) The compensation shall be paid, in the
          case of a surviving spouse . . . during the
          entire period of survivorship or until such
          surviving spouse shall remarry and, in the
          case of other dependents, during 450 weeks and
          if at the expiration of 450 weeks there shall
          be one or more dependents under 18 years of
          age, compensation shall be continued for such
          dependents until they reach [the age of
          majority].

          [(Emphasis added).]

     On appeal, Eric Apperman argues that under 
N.J.S.A. 34:15-

13, Harold is entitled to continued dependency benefits for as

long as he is disabled.       He recognizes that the statute does not

explicitly    provide   for    benefits    for   life,   but   argues   the

Legislature's use of the phrase "full compensation period" was a

reference to 
N.J.S.A. 34:15-12(b).           He contends that otherwise

                                    6                              A-5446-15T3
there would be an unintentional omission in the statute because

subsection (i) permits payment of dependency benefits to both

minor children and mentally or physically deficient persons, while

subsection (j) provides for continuation of benefits beyond 450

weeks for minor dependents who continue in minority but not for

adult    children      who     remain      incapacitated.           Eric   contends        the

Legislature      did    not     intend      to      terminate    benefits       for     adult

incompetent dependents such as Harold based on this gap in the

statute.

     Eric's argument fails to recognize that "[t]he court's task

is to construe the [statute] as written."                         U.S. Bank, N.A. v.

Hough, 
210 N.J. 187, 199 (2012).                       As written, section 13(j)

unambiguously limits dependency benefits for dependents (including

incapacitated dependents) still above the age of majority to 450

weeks,   while    section          13(i)   allows      benefits     for    incapacitated

dependents still under the age of majority at the close of 450

weeks    to   continue        until       the    age   of   majority       is   attained.

Furthermore, the phrase "the full compensation period of 450 weeks"

does not confer benefits beyond 450 weeks, or refer to 
N.J.S.A.

34:15-12(b),           which        addresses          injured        employees            not

dependents.       Based       on    the     statute's       plain    language,         Eric's

contention regarding a statutory omission warrants no further

discussion.

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     We     further   conclude   that   this   interpretation   of   the

dependency statute does not conflict with the overall statutory

scheme embodied in the Workers' Compensation Act, 
N.J.S.A. 34:15-

1 to -142 (the Act).    As Eric correctly points out, because of its

remedial nature, the Act must be construed liberally.           Wood v.

Jackson Twp., 
383 N.J. Super. 250, 253 (App. Div. 2006) (citation

omitted).    Nonetheless, in Wood we further observed:

            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 (emphasis added) (citations
            omitted).]

     We have also recently observed that:

            It is, of course, axiomatic that "the Workers'
            Compensation    Court    [now   Division]   is
            statutory,    with    limited   jurisdiction."
            Connolly v. Port Auth. of N.Y. & N.J., 317
            N.J. Super. 315, 318 (App. Div. 1998).
            Because its jurisdiction is statutory, it "is
            limited to that granted by the Legislature and
            therefore 'cannot be inflated by consent,
            waiver, estoppel or judicial inclination.'"
            Bey v. Truss Sys., Inc., 
360 N.J. Super. 324,
            327 (App. Div. 2003) (quoting Riccioni v.
            American Cyanamid Co., 
26 N.J. Super. 1, 5
            (App. Div.), certif. denied, 
13 N.J. 289
            (1953)).

                                    8                           A-5446-15T3
            [Williams, supra, 449          N.J.    Super.     at    562
            (emphasis added).]

     The    compensation     judge    correctly       ruled        that    Harold's

dependency benefits were limited to 450 weeks pursuant to 
N.J.S.A.

34:15-13.    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.                         In

our view, it is irrelevant whether the settlement agreement that

permitted   continuation     of   those    benefits    beyond       the    450-week

period was borne out of respondent's benevolent generosity or the

parties' mutual mistake of law.

     In either event, both parties agree the compensation judge

lacked authority to enforce a settlement order that would extend

Harold's benefits beyond the statutory limit.                 See, e.g., Lynch

v. Newark, 
43 N.J. Super. 546, 550 (Cty. Ct. 1957) (stating "the

balancing of equities has no place in this dispute.                 The Workmens'

Compensation    Division    is    a   purely      statutory    tribunal        whose

jurisdiction has been precisely defined by the Legislature.                         No

equity jurisdiction was conferred to it[.]").

     Under the terms of the settlement, Harold concededly received

the maximum amount of dependency benefits authorized by law during

the 450-week period.       The sole relief Eric sought was to enforce


                                       9                                     A-5446-15T3
the settlement order and compel NJM to continue paying dependency

benefits to Harold.     Notably, Eric does not seek to void the

settlement agreement predicated on the parties' mutual mistake of

law or on any other basis. In any event, even were Eric successful

in voiding the settlement, ultimately Harold could not receive

more than the 450 weeks of dependency benefits at $400 per week

he has already been paid in accordance with 
N.J.S.A. 34:15-13.

     We are not insensitive to the fact that Harold remains

incapacitated, and the result we reach effectively terminates his

dependency benefits.   We are sympathetic, but the judiciary is not

at liberty to subordinate the requirements of the law to the

natural influences of sentiment and benevolence.     Thus, any gap

or omission in 
N.J.S.A. 34:15-13, which Eric urges us to correct,

is best left to the Legislature to address.

     Affirmed.




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