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Ries v. Harry Kane Inc.

Decided: July 7, 1983.

WILLIAM R. RIES, PETITIONER-RESPONDENT,
v.
HARRY KANE, INC., RESPONDENT-APPELLANT



On appeal from Final Judgment of the Division of Workers' Compensation.

Fritz, Joelson and Petrella. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

This workers' compensation appeal arises because of two separate offset provisions in Chapter 83 of the Laws of 1980 (hereinafter Chapter 83) taking into account social security benefits. It also involves novel questions of the interrelationship of those offsets with an offset in the federal social security laws. The State legislation essentially establishes a formula for a "special adjustment benefit payment" with a social security offset for workers permanently disabled under statutory benefit schedules in effect prior to July 1, 1980. As of that date the maximum workers' compensation benefit was increased to $185. The chief judge of compensation applied the social security offset under section 1 of that law but refused to apply it under section 9 on the ground that federal law had been satisfied, and thus precluded further reduction of benefits.

Petitioner filed his workers' compensation claim in October 1977 based on injuries received when he was "struck by [a] piling while in the course of his employment." Initially there was a dispute as to whether or not the proper forum was before a federal agency under the Longshoremen's & Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. However, the matter eventually proceeded before New Jersey's Workers'

Compensation Division, and on February 19, 1981 appellant conceded that petitioner was totally disabled and entitled to compensation of $138 per week, the then applicable maximum rate of weekly compensation. Although appellant had sought to reduce its liability by "whatever offset it may be entitled" to under N.J.S.A. 34:15-95.4 ("section 1") and 95.5 ("section 9"), as enacted in Chapter 83,*fn1 the order entering judgment in the Workers' Compensation Division provided for the weekly amount without a ruling on the claimed offset.

Because the entered judgment did not resolve the offset issue one way or the other, appellant promptly moved in the Division to amend the judgment in order to obtain credit for an offset under section 9 of Chapter 83 to reduce weekly compensation payments. The chief judge of compensation in a January 25, 1982 opinion ruled that what would have been a $47 per week ($203.67 per month) special adjustment benefit under section 1 was totally offset by petitioner's social security disability benefit payments. Moreover, because the provisions of 42 U.S.C. § 424a(d) preclude a federal offset where there is a State offset there was no offset to be applied under section 9. He entered an appropriate order on February 23, 1982, and it is from this order that the employer appeals. We affirm.

This appeal arises in the context of whether the compensation judge correctly applied the offsets for social security disability benefits payable to petitioner-respondent Ries (petitioner) in denying the motion of appellant employer (appellant) for an amendment of the judgment in order to obtain credit by way of

offset to reduce the workers' compensation payments it had been ordered to pay.

Both sections 1 and 9 contain provisions for reduction of benefits payable. The bill that became Chapter 83 was Assembly Bill 1206 (1980). As originally introduced in the Legislature it contained an offset provision only in section 1. Subsequent amendments were made to the bill during the course of the legislative process. Although these amendments affected section 1, there was no substantial change in the application of its offset provision. As enacted section 1 reads as follows:

Any employee or dependent receiving further weekly benefits as provided under R.S. 34:15-95, R.S. 34:15-12(b) or R.S. 34:15-13 at a rate applicable prior to January 1, 1980, and whose payment is less than the maximum compensation rate in effect for the year 1980 shall be entitled to receive a special adjustment benefit payment from the fund provided for by R.S. 34:15-04 and R.S. 34:15-95 and from those sources as provided for by this amendatory and supplementary act.

The amount of the special adjustment benefit payment shall be such that when added to the worker's compensation rate awarded pursuant to R.S. 34:15-95, R.S. 34:15-12(b), R.S. 34:15-13 or this section as a result of injury or death, the total shall bear the same percentage relationship to the 1980 maximum workers' compensation rate that the worker's own compensation rate awarded as a result of the injury or death bears to the then effective maximum workers' compensation rate. The amount of the special adjustment benefit shall be payable at a rate of 35% of the adjustment during the fiscal year 1981 commencing July 1, 1980; 75% of the adjustment during the fiscal year 1982; and 100% of the adjustment during the fiscal year 1983 and thereafter. The special adjustment benefit payment provided herein shall be reduced by an amount equal to the individual's benefit payable under the Federal Old-Age Survivors and Disability Insurance Act (not including increases in such benefits due to any Federal statutory increases after June 30 May 31, 1980),*fn2 Black Lung benefits, or the employer's share of disability pension payments received from or on account of an employer. Where any person refuses to authorize the release of information concerning the amount of benefits payable under the aforementioned benefits, the division's estimate of said amount shall be deemed to be correct unless and until the actual amount is established and no adjustment shall be made for any period of time covered by any such refusal. [ N.J.S.A. 34:15-95.4].

Assembly Bill 1206 (1980), as originally introduced, did not contain what is now section 9 of the Act. That section was added by Senate amendments just before passage. As introduced in the Legislature, A-1206 originally contained only nine sections, and the original section 9 (which became section 10) contained the effective date. The "new" section 9, as enacted, also contained a different provision for reduction (or offset) of benefits by social security payments, but with limitations. That section reads as follows:*fn3

For persons under the age of 62 receiving benefits as provided under R.S. 34:15-95, or R.S. 34:15-12(b), and whose period of disability began after June 1, 1965, such compensation benefits shall be reduced by an amount equal to the disability benefits payable under the Federal Old-Age, Survivors and Disability Insurance Act as now or hereafter amended not to exceed the amount of the reduction established pursuant to 42 U.S.C. 424a. However, such reduction shall not apply when the combined disability benefits provided under R.S. 34:15-95, or R.S. 34:15-12(b), and the Federal Old-Age, Survivors and Disability Insurance Act is less than the total benefits to which the Federal reduction would apply, pursuant to 42 U.S.C. 424a. Where any person refuses to authorize the release of information concerning the amount of benefits payable under said Federal act, the division's estimate of said amount shall be deemed to be correct unless and until the actual amount is established and no adjustment shall be made for any period of time covered by any such refusal. [ L. 1980, c. 83, § 9; N.J.S.A. 34:15-95.5].

Although there are two provisions in Chapter 83 for reduction of workers' compensation benefits by social security benefits they are not identical in wording or application. The section 1 reduction is by the entire benefit payable without regard to cost of living increases after May 31, 1980. Unlike section 9 of the statute, it is not limited to the amount of the reduction allowed under 42 U.S.C. § 424a. Thus, whether considering the $866.90 social security benefits payable (including ...


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