On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. 2003-36542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
This is the second appeal in this case in which we address the question of whether an employee who suffered a compensable injury, returned to full duty work and was later terminated for cause is entitled to temporary disability benefits after he was terminated. We previously determined "that an employee is not precluded from receiving temporary disability benefits under these circumstances. However, because temporary disability benefits constitute replacement for actual wage loss, the employee must prove that but for the disability he would have been employed." Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 425 (App. Div.), certif. denied, 188 N.J. 492 (2006). We reversed and remanded after concluding that the record was insufficient for us to make a determination on that issue. We stated:
If Cunningham can prove that he actually lost income on or after February 11, 2005, because of his disability, he is entitled to receive temporary disability benefits to that extent. To allow any more or any less would contravene N.J.S.A. 34:15-38 (temporary disability payable during [the] time employee is "unable to continue at work by reason of the accident" (emphasis added)), and the Outland [v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 540 (1998)] holding. In our view, on the record before us, the judge of compensation's order bestowed upon Cunningham a windfall. Because of the novelty of the issue, we follow the Court's approach in Outland and remand to the Division of Workers' Compensation to afford Cunningham an opportunity to prove actual wage loss. [Cunningham, supra, 386 N.J. Super. at 433-34.]
We specifically noted that we could not determine from the record "whether [petitioner] made any efforts to seek employment before his visit with [his treating physician]" eight days after he was terminated. Id. at 434. We stated unequivocally, however, that when "he left his job (whether characterized as voluntarily or as a termination for cause in violation of a company policy he knew would result in termination), and, without new employment secured, he did so at his peril. His leaving was not related in any way to his disability." Ibid. We further suggested that the testimony of an occupational expert would be helpful to "provide evidence as to how long it would have likely taken [petitioner] to secure employment had he not been disabled." Ibid. We did not, however, require such expert testimony.
After the remand hearing on July 13 and August 3, 2006, the judge of compensation rendered her decision in a letter addressed to us in which she stated:
I understand from your decision that because the circumstances under which Cunningham left Atlantic were not directly related to his disability, you require a proof from him that he would have been able to get a job if it were not for his disability. As directed, I have held further proceedings and made additional findings of fact.
I find that Cunningham graduated from high school and has worked in construction, in warehouses, in fast food, and in retail. He has run cash registers and computers and driven forklifts. He managed a furniture store and handled inventory and shipping; he has supervised others and dealt with the public. Since he was sixteen, he has always been able to find work, leaving each job for a better one. Unfortunately, the areas in which he has the most experience all require either heavy lifting, standing for long periods, or both. He cannot perform these jobs with a damaged knee. Without the disability, he would certainly be working. Moreover, he would have received unemployment benefits while he was looking for a job.
When Cunningham's attorney advised me of the cost of bringing in an employment expert, I decided not to permit it. I consider that I have enough evidence on which to base my decision and I do not think expert testimony would add much. Employment experts are geared to finding jobs for people difficult to place: those who are disabled, uneducated, unable to speak English, etc. Except for his disability, petitioner has no other handicaps and has very marketable skills and experience. I cannot believe the experts would find otherwise than that he is readily employable.
As you may recall, I denied Atlantic's request for a stay of my order and Atlantic paid temporary benefits during the appeal. It risked little, since it could recoup its money from future permanency benefits. However, Dr. Helmold's original estimate of a return to work on August 1, 2005 proved to be overly optimistic. Petitioner was still receiving treatment as of July 2006 and has not yet returned to work. No benefits have been paid to him since your decision in June.
An order was entered on August 16, 2006 granting petitioner's motion for temporary disability from February 11, 2004.
The facts relevant to this matter are set forth in our published opinion. Cunningham, supra, 386 N.J. Super. at 424-26. Nevertheless, we summarize them briefly to give context to our discussion in this decision. Petitioner was employed as a machine operator for respondent in 2001. Id. at 425. On October 21, 2003, he injured his knee at work. Ibid. He was provided with workers' compensation benefits and returned to work on light duty. Ibid. Respondent's policy "provided that an employee would be terminated [if he or she] inexcusably failed to report to work for three consecutive days." Ibid. Petitioner failed to report to work for three consecutive days in November 2003 because he was incarcerated. Ibid. Respondent terminated his employment, but his union negotiated a "last chance" agreement which provided that he could retain his employment if he had no unauthorized absences for one year. Ibid. He returned to work on January 5, 2004 and was cleared for full work duty as of January 23, 2004. Ibid. He successfully completed the one year "last chance" agreement in January 2005, but immediately thereafter, was incarcerated again because of an outstanding traffic warrant. ...