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Theodore v. Dover Board of Education

Decided: February 23, 1982.

JOHN E. THEODORE, PLAINTIFF-APPELLANT,
v.
DOVER BOARD OF EDUCATION, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Chancery Division, Morris County.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

This appeal raises, in the context of both procedural and jurisdictional anomalies, a novel question of interpretation of N.J.S.A. 18A:30-2.1, which provides for the payment of sick leave benefits to a school board employee disabled as the result of a work-connected injury.

Plaintiff John Theodore, pursuant to annual contracts, had been continuously employed by the Dover Board of Education (Board) as a custodian since 1956. In February 1978 he sustained a back injury while operating a snow blower on school premises and ultimately underwent disc surgery. He filed a workers' compensation claim and obtained benefits as a result thereof. In June 1979 he returned to work and continued to perform his duties uneventfully for the next seven months. In February 1980, while standing on a ladder and reaching up to change a light bulb, he allegedly re-injured his back. As a result thereof, he was unable to return to work because of activity restrictions placed upon him by his physician. Some two months later he was advised by the Board that he would not be offered a contract for the ensuing school year.

It was Theodore's belief that his employment had been wrongfully terminated in retaliation for his having pursued his workers' compensation rights.*fn1 See N.J.S.A. 34:15-39.1 and .2. Accordingly, he brought an action, encaptioned in the Chancery Division, seeking redress as authorized by the holding of Lally v.

Copygraphics , 173 N.J. Super. 162 (App.Div.1980), aff'd 85 N.J. 668 (1981). We are constrained to note that the Chancery Division designation was improper. In view of the essentially tort nature of the cause of action, it belonged in the Law Division. While that error represented a misallocation of the business of the trial court divisions, it is nevertheless clear that it was not a jurisdictional error. See R. 4:3-1.

In any event, trial commenced in October 1980, during the course of which the judge permitted amendment of the complaint to allege a cause of action pursuant to N.J.S.A. 18A:30-2.1. That section provides in full as follows:

Whenever any employee, entitled to sick leave under this chapter, is absent from his post of duty as a result of a personal injury caused by an accident arising out of and in the course of his employment, his employer shall pay to such employee the full salary or wages for the period of such absence for up to one calendar year without having such absence charged to the annual sick leave provided in sections 18A:30-2 and 18A:30-3. Salary or wage payments provided in this section shall be made for absence during the waiting period and during the period the employee received or was eligible to receive a temporary disability benefit under chapter 15 of Title 34, Labor and Workmen's Compensation, of the Revised Statutes. Any amount of salary or wages paid or payable to the employee pursuant to this section shall be reduced by the amount of any workmen's compensation award made for temporary disability.

Following trial, the judge concluded that the Board had terminated plaintiff's employment solely because of his disability and consequent inability to do the job, and further, that under the circumstances, that action was a reasonable managerial decision. The retaliatory firing count of the complaint was accordingly dismissed, and plaintiff does not challenge that dismissal. In respect of the Title 18A claim, which was based on the alleged February 1980 injury, it was the judge's conclusion that there were insufficient facts before him to permit its proper adjudication. He, therefore, directed the Board to make an administrative evaluation and decision as to plaintiff's right to relief under the statute and further accorded the plaintiff the right, if aggrieved by the Board's determination, to seek review thereof in the cause.

The Board promptly complied with the judge's direction and conducted a hearing. The record does not indicate whether a transcript thereof was made. In any event, the Board's findings and conclusions were set forth in its letter to plaintiff's counsel. The Board rejected plaintiff's claim, concluding that his symptoms following the February 1980 incident on the ladder were merely the continuing symptoms of the original injury and not attributable to an "accidental" reinjury within the intendment of N.J.S.A. 18A:30-2.1. Plaintiff then sought review of this determination in the trial court in accordance with the judge's earlier directive, and an evidential hearing on this issue ensued.

As the judge viewed the issue, plaintiff would have been entitled to a new 12-month period of benefits under the statute if an accident as defined thereby had occurred in February 1980. He concluded, however, that while some kind of episode had occurred as plaintiff was attempting to change a light bulb, that episode was not an accident within the statutory intendment since it involved neither a direct impact nor an injury sustained as a result of unusual strain or stress. It was rather his determination that plaintiff had exacerbated his original back injury while engaged in the usual physical motions of his job and that ...


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