On appeal from the New Jersey Department of Labor and Industry, Division of Workers' Compensation.
Fritz, Joelson and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
[189 NJSuper Page 3] Western Electric Company, Inc. (Western) appeals the denial by the judge of workers' compensation on the ground of lack of jurisdiction of its request for offset against petitioner's award of temporary disability benefits of amounts it paid as temporary disability from a private plan arrangement and a similar offset against the workers' compensation award for permanent disability
of pension benefits paid or payable to its now retired employee under its retirement plan.
On June 3, 1981 the judge of compensation found petitioner Roosevelt Young totally and permanently disabled within the contemplation of the odd-lot doctrine.*fn1 He awarded petitioner 450 weeks of compensation at the rate of $128 a week, beginning June 6, 1976. Western does not dispute that Young is permanently disabled under the odd-lot doctrine. On this appeal it challenges the judge of compensation's decision that he did not have jurisdiction over the question of whether Western was entitled to offset disability payments it made to Young under its private plan against the workers' compensation award, and a like conclusion with respect to a retirement pension offset. We conclude that the judge of compensation erred as to the disability payment offsets, but was correct as to his lack of jurisdiction to order a set off of pension payments under the plan. We reverse and remand on the former and affirm as to the latter with some necessary discussion.
The facts are essentially undisputed. From June 6, 1976 Western paid Young temporary disability benefits of $278.40 a week for six months under its self-insured, private disability plan, and thereafter half-pay of $139.20 a week until March 23, 1977, when it began paying Young retirement benefits of $299.51 a month. Although the weekly payment under Western's disability plan exceeded the applicable workers' compensation rate, the payments under the pension plan on a monthly basis are less than the $128 a week rate payable under the compensation award.
We have been furnished with portions of the Western "Text of Plan for Employees' Pensions, Disability Benefits and Death Benefits" (the Plan), effective January 1, 1913, with amendments effective to January 1, 1979. Because counsel has not advised us to the contrary, we assume that the inclusion of § 8, par. 27, in the appendix is a representation that the Plan provisions were the same at the time of petitioner's retirement on March 23, 1977. We turn, then, to a consideration of § 8, par. 27, of the Plan, which reads:
In case any benefit or pension, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, to his beneficiaries or to his annuitant under such law, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan; provided, however, that no benefit or pension payable under this Plan shall be reduced by reason of any governmental benefit or pension payable on account of military service or on or after June 1, 1969 by reason of any benefit which the recipient would be entitled to receive under the Social Security Act. In those cases where, because of differences in the beneficiaries, or differences in the time or methods of payment, or otherwise, whether there is such excess or not is not ascertainable by mere comparison but adjustments are necessary, the Committee in its discretion is authorized to determine whether or not in fact any such excess exists, and in case of such excess, to make the adjustments necessary to carry out in fair and equitable manner the spirit of the provision for the payment of such excess.
Western argues that its Plan provides for an offset for payments under its disability benefits provisions and its pension provisions. Significantly, however, the Plan provides for reductions of benefits thereunder by amounts required to be paid under any law having comparable purpose to the Plan. The language of the Plan thus broadly provides for integration with payments required by law under state workers' compensation law. Western further argues that the judge of compensation had jurisdiction to hear and decide the offset question, and to order appropriate offsets, even though the very language of § 27 of the Plan contemplates reducing payments under the Plan. However, by virtue of the fact that disability payments
have already been made under the Plan, Western now seeks an offset for the disability payments it has made against the workers' compensation award.
The language of N.J.S.A. 34:15-29 states a legislative policy that benefits under the workers' compensation law "shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment." Notwithstanding this protection from creditors, there is no question that until 1977 New Jersey had permitted offset of payments under pension and disability plans against workers' compensation payments where the plan so provided. Renshaw v. U.S. Pipe & Foundry Co., 30 N.J. 458 (1959). But in 1977 the following provision was added by amendment*fn2 to N.J.S.A. 34:15-29:
The quoted language allows offsets for disability pension benefits or payments. Previously, offsets for workers' compensation benefits against pensions had been a judicially approved practice in New Jersey when the negotiated pension plan so provided. See Renshaw, supra at 468. However, with respect to pension payments the statute now expresses the legislative policy of this State of preventing intrusion on workers' compensation awards. To this extent Renshaw has been legislatively overturned.
Under N.J.S.A. 34:15-29 private temporary disability payments may be offset against workers' compensation benefits. This aspect of the Renshaw opinion has thus been legislatively codified. Such elimination of duplicate benefits is reinforced by N.J.S.A. 43:21-30, which provides for subrogation by the State or a private plan against the workers' compensation award for disability payments.
The question of the proper forum to resolve such offset revolves around the jurisdiction of the judges of compensation over the award and the offset claimed under the implicated statutory provision. The statutory basis for the jurisdiction of the Workers' Compensation Division (Division) is set forth in N.J.S.A. 34:15-49, which provides:
The Division of Workers' Compensation shall have the exclusive original jurisdiction of all claims for workers' compensation benefits under this chapter.
In Conway v. Mr. Softee, Inc., 51 N.J. 254 (1968), the powers of what was then referred to as the Workmen's Compensation Division*fn3 were stated as follows:
Young argues that under the applicable statute the Division only has authority to determine benefits. He relies on language in Williams v. Newark Pub. Welfare Dept., 43 N.J. Super. 473 (Law Div.1957) to the effect that:
The Division has no jurisdiction to declare an award 'paid' because the employee owes the employer a sum, liquidated or unliquidated, upon an independent claim.
The Division has only the jurisdiction given it by the Workmen's Compensation Act, [Citations omitted] and that act contains no provision for ...