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Dorsey v. First Atlantic Federal Credit Union


January 18, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Case No. 2005-23944.

Per curiam.


Submitted July 17, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

Appellant First Atlantic Federal Credit Union (First Atlantic) appeals from a September 19, 2006, order of the Division of Workers' Compensation that granted petitioner Erin Dorsey's motion for temporary disability benefits. More specifically, the September 19 order provides:

Respondent shall pay petitioner temporary benefits beginning July 14, 2006 to present and continuing in future until such time as petitioner completes her pregnancy, receives EMG/NCV study, repeat MRI and subsequent anterior cervical diskectomy if deemed necessary by Dr. Rosenblum after tests and until discharged by Dr. Rosenblum or her return to work. Payment to be made within 20 days of order.

First Atlantic sought a stay of the order pending appeal, but its application was denied first by the Division and then by this court. We now affirm the order from which the appeal has been taken.

Petitioner's motion for benefits arose out of a work-related accident on March 16, 2005. At that time, she sustained injuries to her neck and back after tripping and falling in First Atlantic's parking lot. Petitioner was treated in the emergency room that day and the next, and later received additional medical treatment. On or about April 1, 2005, petitioner filed a Claim Petition with the Division. The claim was accepted as compensable and authorized medical treatment and temporary total disability benefits were initially provided.

Petitioner was terminated from her employment with First Atlantic for cause, effective April 6, 2005. The disciplinary notice advised petitioner that the termination was due to the discovery of a teller shortage of $1,800 on March 11, 2005, after written warnings had been given to petitioner for two prior instances of differences of $100 each.*fn1 In spite of the termination, First Atlantic continued to authorize certain medical treatments for petitioner including an MRI, an EMG, epidural steroid injections and a diagnostic nerve root block to treat the pain in petitioner's neck and back, which radiates down her left arm and hand. It refused, however, to continue to pay temporary disability benefits.

At the request of the insurance company, petitioner's treating physician, Dr. Jonathan Lester, reevaluated petitioner. Beginning in September 2005, Dr. Lester repeatedly recommended a consultation with an orthopedic spine surgeon to explore surgical treatment options for petitioner. These recommendations were not approved or implemented by First Atlantic and its carrier.

Eventually, on July 14, 2006, at the request of First Atlantic, petitioner was examined by Dr. Bruce R. Rosenblum, a board certified neurological surgeon. Dr. Rosenblum indicated in his report, which was admitted into evidence, that petitioner had a post-traumatic cervical radiculopathy. Dr. Rosenblum also noted that petitioner was then pregnant; he, therefore, recommended that she undergo a new MRI and an EMG/NCV study after delivery of the baby. Among other things, his report noted that "[d]ue to the problems . . . entailed in this report, [petitioner] has been unable to hold down a job and has held multiple jobs, the longest of which she has worked at for approximately three months." Dr. Rosenblum recommended that petitioner remain out of work pending reevaluation and surgery after the completion of her pregnancy.

On or about August 28, 2006, petitioner filed her motion for medical and temporary benefits based on the report of Dr. Rosenblum and the failure of counsel for First Atlantic to respond to petitioner's request for temporary benefits. On September 5, 2006, First Atlantic did respond, through counsel. It indicated that it would authorize the updated cervical MRI as well as the EMG/NCV recommended by Dr. Rosenblum. On the other hand, it stated that it would not authorize additional temporary total disability benefits until petitioner undergoes the authorized electrodiagnostic studies. On September 7, 2006, counsel for First Atlantic filed a certification in opposition to petitioner's motion, wherein he confirmed both the authorization for medical treatments and the refusal to reinstate temporary total disability benefits. In that certification, counsel urged that petitioner's motion should be dismissed because petitioner was unable currently to undergo the treatment due to her pregnancy and because petitioner was not currently disabled as a result of a work-related injury, but rather because of her pregnancy.

The hearing on petitioner's motion was conducted on September 19, 2006, after which Judge Jerry J. Massell of the Workers' Compensation Court issued the order compelling First Atlantic to pay petitioner temporary disability wages from which First Atlantic has appealed.

This court's review of a final administrative decision "is quite circumscribed." Fraternal Order of Police v. Bd. of Trs. of the Police and Firemen's Ret. Sys., 340 N.J. Super. 473, 479 (2001). Substantial deference is given to an agency's expertise. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (giving high regard to an agency's expertise in the area). An agency's determination is reversed "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

"The purpose of temporary disability benefits is to provide an individual who suffers a work-related injury with a 'partial substitute for loss of current wages.'" Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 427 (App. Div.) certif. denied, 188 N.J. 492 (2006) (quoting Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966)). Temporary disability benefits are payable during the period of disability, not to exceed four hundred weeks, N.J.S.A. 34:15-12(a), from the day the employee is first unable to work because of the injury until the employee "is able to resume work and continue permanently thereat[.]" N.J.S.A. 34:15-38; Cunningham, supra, 386 N.J. Super. at 427. "Actual absence from work is a prerequisite to a temporary disability award." Id. at 428. "An injured worker who resumes work after a period of disability who later experiences a relapse may later recover for intermittent or recurrent intervals of temporary disability." Ibid.

On appeal, First Atlantic argues that petitioner is not entitled to temporary disability benefits because she has no actual wage loss and she was neither employed nor had the promise of employment at the time she needed treatment. It further contends that temporary benefits are meant to substitute for actual lost income, and that there is no proof that petitioner was employed during the time period between her termination and her pregnancy. It charges that she voluntarily removed herself from the work force.

Petitioner counters that she was terminated after her disability arose, that she has not voluntarily removed herself from the work force. According to petitioner, First Atlantic should be barred from arguing that she had no actual wage loss because it did not make that argument before the Division.

First, we agree with First Atlantic that it did raise the issue of petitioner's alleged voluntary removal from the work force and her alleged failure to sustain an actual wage loss. We are satisfied, however, that the judge of compensation decided those issues against First Atlantic, on sufficient credible evidence. For example, according to the report prepared by Dr. Rosenblum, which was admitted into evidence, after petitioner was terminated by First Atlantic, "[d]ue to the problems . . . entailed in this report, [petitioner] has been unable to hold down a job and has held multiple jobs, the longest of which she has worked at for approximately three months." In addition, all of the progress reports prepared by Dr. Lester evidence a lack of improvement in petitioner's condition and confirm petitioner's willingness to undergo all reasonable procedures and therapies, including surgery, to alleviate her pain. Adopting the position of First Atlantic, that "all papers on file in the court or agencies below" are part of the appellate record,*fn2 there was actually unrebuted evidence before the judge of compensation that petitioner had attempted to work during this period, but was unable to "hold down a job" because of her compensable injuries.

At the September 19, 2006 hearing, the question arose whether petitioner's condition, as reflected in Dr. Rosenblum's report, was due to her work-related injury or due to her pregnancy. Referring to a telephone conference with Dr. Rosenblum, in the presence of counsel for both parties, the judge recalled "he was pretty sure on the telephone. He said the reason she is out of work and cannot work is not because of her pregnancy, but because of her injury, her compensable injury to her spine." Acknowledging that to be an accurate statement of the doctor's opinion, counsel for First Atlantic suggested that the issue is not whether petitioner is out of work due to the pregnancy. Instead, the point argued by counsel is petitioner could not currently undergo the authorized treatments because of the pregnancy. In other words, First Atlantic objects to the payment of temporary disability benefits during the period when treatment must be postponed because of petitioner's pregnancy.

As petitioner correctly points out, such an argument is inequitable. Dr. Lester first recommended a surgical consult in September 2005. If the referral to Dr. Rosenblum had been made at that time, the diagnostic studies and even the surgery, if needed, would have been completed prior to petitioner's pregnancy in May 2006. Without accepting petitioner's speculation that First Atlantic willfully delayed authorization of the requisite medical diagnosis and care, we are satisfied that ample evidence supports the judge's conclusion that petitioner was out of work because of her compensable injury and as a result thereof, she suffered an actual loss.

Petitioner methodically and persistently pursued the medical and temporary disability benefits afforded by the Workers' Compensation Act. Dr. Rosenblum, who examined petitioner at First Atlantic's request, opined unequivocally that petitioner was unable to work in July 2006 due to her work-related injury, not due to her pregnancy.

Both parties rely on our opinion in Cunningham, supra, to support their respective positions in this appeal. 386 N.J. Super. at 423. In Cunningham, the petitioner suffered a compensable injury, returned to full duty work, and was later terminated for cause. Id. at 424. We agreed with the determination by the judge of compensation that an employee is not precluded from receiving temporary disability benefits under the circumstances there presented -- where the employee was disabled from work returned to full duty, thereafter terminated for cause, and relapsed before he obtained other employment. We held the employee was required to prove that but for the disability he would have been employed. Id. at 425, 432. Thus, in Cunningham, we remanded to permit the employee to prove he actually lost income on or after the date, eight days after termination, that he was examined by the physician and determined to be unable to work because of his knee injury. Id. at 434.

In Cunningham, we noted that the employer had no reason to anticipate a temporary disability claim. Id. at 429. In addition, we made the following observation:

[The employer] does not dispute that as of February 11, 2005 [eight days after his termination], Cunningham was unable to work because of his work-related injury. Had Cunningham continued to be in its employ on that date (or, conversely, had he gone to [the doctor] two weeks earlier with the same result), a current wage loss would have resulted and a recurrent disability period would have plainly begun, during which temporary benefits would have been payable. But, because Cunningham was not employed when the new disability period began, Atlantic States argues there was no current wage loss and no entitlement to temporary disability benefits. [Id. at 428.]

As in this case, the employer's designated physician was of the opinion the employee could not work because of the compensable injury. But petitioner's claim for temporary disability, unlike Cunningham's claim for disability, had already been asserted before she was terminated. Moreover, the proofs support a conclusion that petitioner's disability continued after her termination, and she was never restored to the point where she could resume work and continue permanently thereat.

At the time that this matter came before the judge of compensation, the judge asked the doctor directly whether petitioner's then current disability was the result of her work-related injury or the result of her pregnancy. The doctor's unequivocal response, together with the reports that petitioner's efforts to return to work were unsuccessful because of the persistent pain, satisfied petitioner's burden of showing a wage loss as a result of her temporary disability and supported the order entered by the judge. We decline to disturb that ruling by the judge of workers' compensation. See Close, supra, 44 N.J. at 599.


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