On appeal from the Final Determination of the Division of Unemployment & Disability Insurance, Department of Labor.
Antell, Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.
CNA Insurance Company ("CNA"), the appellant/insurer in both of the captioned disability insurance claims, appeals from awards of the Appeal Tribunal of the Division of Unemployment & Disability Insurance, Department of Labor. In both cases petitioners were awarded temporary disability payments pursuant to N.J.S.A. 43:21-29 and -30 after their workers' compensation temporary disability payments were prematurely terminated. In both cases CNA rejected petitioners' claims for temporary disability payments under the Temporary Disability Benefits Law, after which petitioners successfully appealed to the Division of Unemployment & Disability Insurance.
Elizabeth Brinkerhoff had received workers' compensation benefits from December 15, 1990 until April 22, 1991. The workers' compensation carrier's examining physician determined on April 23, 1991 that Ms. Brinkerhoff had been able to work as of March 12, 1991 and that she in fact had been overpaid for five weeks and six days. She contested that ruling in the workers' compensation proceeding. Notwithstanding the examining doctors opinion, Ms. Brinkerhoff decided she could not return to work, remained under the care of several doctors, and was hospitalized for her back problems from August 21, 1991 through September 2, 1991.
Jorge Carruitero injured his back on the job on August 27, 1990. He received workers' compensation benefits from August
28, 1990 until October 16, 1990. The employer's physician found that he was able to return to light duty work on October 18, 1990 so long as he engaged in no "heavy lifting or repeated bending." His employer's insurer suspended workers' compensation benefits on this basis, notwithstanding the fact that the limited activities were antithetical to the nature of warehouse work.*fn1 He therefore contested the stoppage of workers' compensation benefits. He remained under continuing medical care from October 17, 1990 until January 2, 1991.
In each case the Appeal Tribunal found that the petitioner was entitled to disability benefits on the basis of a contested workers' compensation claim. Petitioners both had a continuing inability to work and were entitled to the temporary payments while their compensation claims were being adjudicated. If their compensation claims are successful, the temporary disability carrier is statutorily subrogated under the Workers' Compensation Act to petitioners' rights to collect the benefits during the period that payments were received under the Temporary Disability Benefits Law. N.J.S.A. 34:15-57.1. The reciprocal section in the Temporary Disability Benefits Law, N.J.S.A. 43:21-30, also provides for subrogation to the extent of disability payments made when a claimant is entitled to workers' compensation benefits.
CNA does not dispute the factual determinations of the Appeal Tribunal. It recognizes that both claimants were in fact continuously disabled. CNA asserts, however, that temporary disability benefits are not payable where the injuries are work related. It is difficult to see how this Conclusion can be drawn from the language of N.J.S.A. 43:21-29. Indeed, that was one of the purposes of the reciprocal provisions in the statutes. This statute clearly states that any covered individual who suffers from a work-related accident which is not compensable under workers' compensation is eligible for benefits.
Disability shall be compensable subject to the limitations of this act, where a covered individual suffers any accident or sickness not arising out of and in the course of the individual's employment or if so arising not compensable under the workers' compensation law (Title 34 of the Revised Statutes), and resulting in the individual's total inability to perform the duties of employment.
[ N.J.S.A. 43:21-29; emphasis added].
The temporary disability benefits are thus payable in two situations: first, "where a covered individual suffers any accident or sickness not arising out of and in the course of the individual's employment . . . ."; second, where the accident arose out of or in the course of employment (and therefore on its face would be covered by workers' compensation), but the accident or sickness is "not compensable under the workers' compensation law." In both cases there must be a total inability to perform the duties of employment. CNA's arguments would have us read out of the statute the second condition, a situation that occurred in both cases before us. The injuries clearly arose out of or in the course of employment. But after a period of time, the workers' compensation ...