On appeal from the Private Plan Hearing Office, Department of Labor.
Approved for Publication March 3, 1997. As Corrected April 25, 1997.
Before Judges Petrella, Landau and Kimmelman. The decision of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The decision of the court was delivered by LANDAU, J.A.D.
This is an appeal by Douglas H. Paterson from a final decision of the Department of Labor, Private Plan Hearing Office, that denied his request to enforce payment of temporary disability benefits under an employer private plan.
After Paterson was injured in a motor vehicle accident on February 12, 1993, he filed a claim for workers' compensation benefits from his employer Sonoco Products Co. The claim was contested, but Paterson received temporary compensation benefits from April 17, 1993 through October 31, 1993.
GAB Business Services, Sonoco's compensation servicing agent (Sonoco is self-insured), refused to continue benefits after October 31, 1993 because Paterson, apparently on advice of counsel, refused to submit to a further physical examination that it requested. Subsequently, Paterson did agree to a GAB-requested neurological and psychiatric examination which was conducted on April 26, 1994. The temporary compensation benefits were promptly resumed on a reservation of rights basis, effective April 25, 1994, preserving Sonoco's ability to contest compensability.
Paterson sought temporary disability coverage under N.J.S.A. 43:21-29 and 21-30 for the period between November 1, 1993 and April 25, 1994 when no compensation benefits were paid. These statutes provide in pertinent part:
N.J.S.A. 43:21-29. Compensable Disability
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. 43:21-30. Nonduplication of benefits
... Where a claimant's claim for compensation for temporary disability, under the provisions of [the workers' compensation law], is contested, and thereby delayed, and such claimant is otherwise eligible for benefits under this chapter, said claimant shall be paid the benefits provided by this chapter until and unless said claimant receives compensation under the provisions of [the workers' compensation law].
Critical to the present case is N.J.S.A. 34:15-19, part of the Workers' Compensation Act, which formed the basis for GAB's cessation of temporary compensation benefits during the period when Paterson opted not to submit to re-examination. This section provides:
After an injury, the employee, if so requested by his employer, must submit himself for physical examination and X-ray at some reasonable time and place within this state, and as often as may be reasonably requested, to a physician or physicians authorized to practice under the laws of this state. If the employee requests, he shall be entitled to have a physician or physicians of his own selection present to participate in such examination. The refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal. When a right to compensation is thus suspended no compensation shall be payable in ...