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Sperling v. Board of Review

December 11, 1998

MARK SPERLING, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, RESPONDENT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 301 N.J. Super. 1 (1997).

The opinion of the court was delivered by: Per Curiam

Argued September 28, 1998

The judgment is affirmed, substantially for the reasons expressed in Judge Baime's opinion of the Appellate Division, reported at 301 N.J. Super. 1 (1997).

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI and COLEMAN join in the Court's opinion. JUSTICE STEIN filed a separate Concurring opinion. JUSTICE O'HERN filed a separate Dissenting opinion.

STEIN, J., Concurring.

The Court affirms the judgment below on the basis of the Appellate Division's majority opinion. ___ N.J. Super. ___ (1998). I join in the Court's Disposition but write briefly to identify a collateral issue, raised at oral argument, that the Court's Disposition does not purport to resolve.

Petitioner sustained personal injuries under circumstances in which his right to compensation under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, was "in a twilight zone, with liability under the compensation law doubtful and dependent on the outcome of contested proceedings." Janovsky v. American Motorists Ins. Co., 11 N.J. 1, 5 (1952). In such circumstances, petitioner would have been entitled to receive temporary disability benefits pending resolution of his workers' compensation claim. See N.J.S.A. 43:21-30; Janovsky, supra, 11 N.J. at 5.

Petitioner testified that he applied to the Division of Temporary Disability Insurance (Division) for disability benefits, but the Division had no record of his claim and so informed him. Subsequently, he settled his compensation claim pursuant to N.J.S.A. 34:15-20 for $1500, of which $500 was allocated to counsel fees. Thereafter, he reapplied to the Division for temporary disability benefits, but the Division determined that he was ineligible because he had received a workers' compensation award for the same disability. A divided panel of the Appellate Division affirmed the Division's denial of benefits, holding that the receipt of benefits under the Workers' Compensation Act and the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -56, for the same injury is impermissible.

Before us, petitioner's counsel argued for reversal on the theory that if petitioner had in fact received temporary disability benefits from May 1993, when he allegedly applied, until October 1994 when his workers' compensation claim was settled for a nominal sum, the Division's right of subrogation would be limited to the amount of the compensation award. In that circumstance, because petitioner's temporary disability benefits would substantially exceed the compensation award, petitioner would receive benefits under both statutes for the same injury. Accordingly, petitioner argued that an award subsequent to the compensation settlement of temporary disability benefits for the same period in which petitioner would have been eligible to receive them prior to the settlement would not contravene the legislative plan. Petitioner emphasized that where the compensation settlement is nominal, reflecting the weakness of the compensation claim, a requirement that the worker fully reimburse the Division for temporary disability benefits substantially in excess of the compensation settlement would be self-defeating, because workers would be reluctant to agree to settle compensation claims if the settlement would generate a liability in excess of the amount received.

The Attorney General, representing the Board of Review, disagreed, contending that the statute required full reimbursement of temporary disability benefits by a worker who settles a compensation claim irrespective of the disparity between the benefits paid and the amount of the workers' compensation settlement. Subsequent to oral argument the Attorney General informed the Court that the Division has issued an Administrative Instruction directing that claimants be permitted to retain temporary disability benefits paid prior to a Section 20 settlement of a workers' compensation claim, to the extent such benefits exceed the settlement. The Attorney General has advised the Division to withdraw that portion of the Administrative Instruction, believing it to be contrary to law.

Because petitioner had not received temporary disability benefits prior to settling his workers' compensation claim, my view of the Court's Disposition is that it does not resolve the question whether a worker whose workers' compensation settlement is less than the amount of temporary disability benefits received prior to the settlement nevertheless is obligated to reimburse the Division in full. Without expressing any final view on that issue, I note that there appears to be a substantial basis for the view that the Division's right of recovery would be limited to the amount of the compensation settlement. See N.J.S.A. 43:21-30 ("In the event that workmen's compensation benefits . . . are subsequently awarded for weeks with respect to which the claimant has received disability benefits . . . , the State fund . . . shall be entitled to be subrogated to such claimant's rights in such award to the extent of the amount of disability payments made hereunder.")(emphasis added). See also Statement to A. 216 (L. 1967, c. 306) ("There is ample provision under this section . . . for subrogation and repayment from a subsequent workmen's compensation award to preclude double benefits.").

Based on my understanding of the limited scope of the Court's affirmance, I concur in the Court's Disposition of this appeal.

O'HERN, J., Concurring in part and Dissenting in part.

I concur with Justice Stein's understanding of the limited breadth of the Court's judgment. ...


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