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Tobin v. All Shore All Star Gymnastics

June 24, 2005

CHRISTINA TOBIN, PETITIONER-RESPONDENT,
v.
ALL SHORE ALL STAR GYMNASTICS, RESPONDENT-APPELLANT.



On appeal from a judgment of the Division of Workers' Compensation, Docket No. 2003-028160.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued May 17, 2005

Before Judges Stern, Wecker and S.L. Reisner.*fn1

The respondent-employer, All Shore All Star Cheerleading & Gymnastics (All Shore), appeals from a judgment awarding $11,748 in temporary disability benefits for eighteen and 6/7 weeks from August 5, 2003 to December 15, 2003, after petitioner resumed her duties as owner of All Shore but was not paid as an instructor. All Shore argues that "petitioner was not entitled to temporary disability benefits" for that period as she "was not totally disabled on a temporary basis and unable to work as a result of a work-related injury" because she had resumed "performing light duty," and that as the employer "offered to secure the judgment . . . with a bond," a stay pending appeal should have been granted.

The critical facts were stipulated as contained in petitioner's affidavit of September 4, 2003. Petitioner is "the owner and chief gymnastics instructor at All Shore . . ."*fn2 She suffered an injury to her right shoulder as a result of an assault*fn3 incident to her work on May 1, 2003, and on August 5, 2003 was "released" by her doctor to do "lite duty with no use of [her] right arm or shoulder."*fn4 According to petitioner:

17. As the owner and chief gymnastics instructor, I must spot my students, which involves catching a student before they fall or sustain an injury. Spotting requires the use of both shoulders and both arms.

18. When I perform spotting, I must frequently catch a student who weighs in excess of 100 lbs. while they are in a free-fall.

19. My chief value to my company, and my main area of duties, is as a gymnastics instructor.

20. My value as a gymnastics instructor is based on my seventeen years of experience as a student, competitor, and instructor. I am the most experienced and valuable gymnastics instructor at All Shore, All-Star Cheerleading & Gymnastics.

21. I employ several instructors at All Shore to aid me in teaching the various classes.

22. I employ a bookkeeper to perform general accounting, paperwork, and to run the office.

23. Since my right shoulder was injured, I have had to employ and pay an additional instructor to perform ...


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