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Mercado v. Atlantic States Cast Iron Pipe Co.


March 19, 2008


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. Nos. 2000-31615, -31628, -31632.

Per curiam.


Argued: November 15, 2007

Before Judges Cuff and Lisa.

Respondent Atlantic States Cast Iron Pipe Company (Atlantic States), the employer of petitioner Hector Mercado, appeals from an order for judgment of temporary disability for 264 weeks and a counsel fee based on the temporary disability award. The employer argues that it had no notice that petitioner sought temporary disability benefits. We hold that the employer had sufficient notice that petitioner would seek and might be found eligible for temporary benefits due to the nature of his injury and his request for permanent disability benefits. We remand, however, for specific findings of fact on the issues of eligibility for and duration of the temporary disability benefit.

The parties stipulated that Mercado was employed at Atlantic States and suffered a compensable accident when a 1500 pound pipe fell on his left foot on March 12, 1999. The impact split his reinforced work boot and fractured his left fifth metatarsal and sprained the lisfranc joint.

A week following the accident, petitioner received clearance to return to work on light duty. He was fitted with a large soft boot and returned to his customary work station. He re-injured his foot on June 10, 1999, when he slipped and fell. He was treated at Lehigh Hospital where his foot was placed in a splint and he was given crutches to ambulate. He was cleared for light duty and returned to work, but fell on June 26, 1999, re-injuring the left foot. At that time he commenced physical therapy with Dr. Subervi.

Petitioner was released to return to work without restrictions on July 20, 1999. Petitioner complained that his foot was still swollen and painful. He testified that he asked to be sent to a doctor but his employer refused this request. When his employer refused to authorize treatment, he left the job and sought treatment from a doctor. None of the doctors from whom petitioner sought treatment cleared him to return to work. He underwent multiple lumbar sympathetic blocks. An August 13, 1999 EMG/NCV revealed compression neuropathy of the left peroneal nerve over the fibular head. A bone scan revealed evidence of reflex sympathetic dystrophy (RSD).

From July 20, 1999, through the trial of this matter, petitioner has not worked. He testified that he experiences pain on the bottom of his foot that extends up his left leg to his knee. The pain is constant. He has trouble sleeping because his left foot is extremely sensitive to touch. In fact, he must use a pillow to prevent his right foot and leg from touching his left foot.

He ambulates with the assistance of a cane and has an antalgic gait. He has problems dressing himself. He can drive but only short distances. He does not shop for food because he cannot carry the parcels. He obtains his food from a restaurant at which a stepson works.

Petitioner also testified that he is depressed and seeing a psychiatrist. He described himself as desperate due to his physical condition, his inability to work, and his lack of income. Since 2004, he has been receiving Social Security Disability benefits. Throughout his treatment, petitioner had been prescribed a variety of medications, including Paxil, Tylenol with Codeine, Naproxen, Catapres TTS patches, and Hydrocodone (a generic form of codeine).

The experts presented by both parties agreed that petitioner was injured on the job. They agreed that he experienced a fracture with nerve damage. They agreed that he developed chronic regional pain syndrome, and that he demonstrated a complex neuropsychiatric impairment with features of anxiety, depression and somatoform disorder. The experts disagreed whether the combined orthopedic, neurological and psychiatric disorders rendered him totally permanently disabled.

Dr. Nicholas Diamond opined that petitioner was not able to return to work because it was difficult for petitioner to concentrate due to the cocktail of medications he takes on a daily basis, his educational and language limitations, and the likelihood that a sedentary job would aggravate his injury. Dr. Richard Rubin, a psychiatrist with a concentration in neurology, opined that petitioner would not return to work due to the nature and scope of his injury and his lack of qualifications for any occupation other than hard manual labor.

On the other hand, Dr. Sidney Bender, a neurologist and psychiatrist, testified that petitioner probably experienced chronic regional pain disorder during 1999 and 2000. At the time of his examination in 2003, however, Dr. Bender found no signs of chronic regional pain disorder or RSD. Petitioner may have experienced a peroneal neuropathy attributable to a tight cast but there was no longer any evidence of this condition. Dr. Bender doubted that petitioner experienced pain to the degree expressed by petitioner. The doctor also described petitioner's psychiatric disorder as an adjustment disorder with depression. He assessed petitioner with a partial neurological disability consisting of 5% of the left foot and a partial total permanent neuropsychiatric disability of 5% for adjustment disorder with depression.

Similarly, Dr. Philip Keats, an orthopedic surgeon, observed no swelling or deformity of petitioner's left ankle or any other physical evidence of chronic regional pain syndrome or RSD. He agreed that an early bone scan showed signs of RSD, but a later bone scan and vascular screening failed to note any evidence of the condition. He opined that petitioner's continuing loss of range of motion and sensory changes were residuals of the initial fracture. He also testified that the pain experienced by petitioner was caused by factors other than orthopedic factors. Ultimately, he identified a permanent orthopedic disability of 15% of the left foot.

In her written opinion, the judge of compensation concluded her discussion as follows:

Taking into consideration the opinions of the various examining physicians, I conclude that petitioner suffers a permanent disability of 45% of partial total from his accidents at work. I assign 25% of partial total for psychiatric and neurologic, and the remainder for orthopedic disability. In addition, I find petitioner to have been temporarily unable to work from July 24, 1999 through August 13, 2004 when the records of the psychiatric clinic find his condition to be improved and his leg problems seem to have stabilized. (Emphasis supplied.)

The July 27, 2006 Order for Judgment described the percentage, nature and extent of the disability as follows: "45% of partial total for residuals of fracture of left fifth metatarsal, chronic regional pain syndrome, type I, left peroneal nerve compression neuropathy at the fibular head, depression, and somataform disorder (approx[imate] 25% of partial total neurologic and psychiatric, 15% orthopedic)[.]" The award of temporary benefits and the attorneys' fees associated with this award have been stayed pending appeal.

Atlantic States does not contest the permanent disability award or the attorneys' fees associated with that award. It argues that petitioner never filed a claim for temporary disability benefits; therefore, it lacked notice that petitioner sought this benefit.

In order to recover temporary disability benefits the employee has the burden of proving that he was available and willing to work, and that he would have been working if not for the disability. Cunningham v. Atl. States Cast Iron Pipe Co, 386 N.J. Super. 423, 432 (App. Div.), certif. denied, 188 N.J. 492 (2006). However, unlike permanent partial disability and permanent total disability, there is no statutory definition of temporary disability benefits apart from the context in which such benefits are to be awarded. See N.J.S.A. 34:15-36, -38; Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 237 (2003) (noting that temporary disability benefits requires lost wages, while permanent disability benefits requires proof of a medical condition that materially restricts the function of the body and claimant's ability to work).

N.J.A.C. 12:235-3.2(a) provides that if a "petitioner is currently temporarily totally disabled and/or in need of current medical treatment" then petitioner is to file a motion for temporary disability and/or medical benefits. However, "[w]here only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section." N.J.A.C. 12:235-3.2(a).

We have not identified any statute, rule or case that bars receipt of temporary disability benefits in the face of competent evidence that the petitioner is unable to work due to a workplace injury unless petitioner files a separate or express claim for such benefits. Nor has Atlantic States. We have identified some authority that inferentially allows the award of benefits in the absence of a specific demand.

In Hawthorne v. Van Keuren & Son, 127 N.J.L. 501, 502 (Sup. Ct. 1941), the petitioner's claim only requested that the Bureau "will determine the amount of compensation due" to the petitioner. The deputy commissioner then certified that the only question submitted to him was the extent of the permanent disability, a position asserted by the employer's attorney and to which the petitioner's counsel acquiesced. Id. at 503-04. Therefore, the deputy commissioner only awarded permanent disability benefits. Id. at 502. The county court remanded the case to the Department of Labor to fix and determine the amount of temporary disability suffered by the petitioner. Ibid. The Supreme Court affirmed noting "[t]hat the question of temporary disability should have been examined into and determined is apparent from the fact that such an award was made after the hearing on the referred question." Id. at 504.

In Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 75 (App. Div. 1989), this court noted in passing that the petitioner should have mentioned its reliance on the "odd-lot" doctrine for permanent disability in its pretrial memorandum so as to alert the respondent to this issue and so that the burden of proof attendant upon that reliance would be properly allocated. Ibid. However, the respondent did not raise that issue on appeal in that particular case, so the court did not rule on the issue. Ibid. The introduction of the odd-lot doctrine alters the nature of proofs to support a disability finding. Ibid. Here, the same type of evidence is used for both a temporary and a permanent disability finding. See also Galloway v. Ford Motor Co., 5 N.J. 396, 398 (1950) (petitioner filed a claim for temporary disability benefits but the Workers' Compensation Bureau also awarded him permanent disability benefits).

To be sure, N.J.A.C. 12:235-3.2(a) indicates that notice of a temporary disability is important, as it requires a motion to be filed on the issue. When the claim is for past periods of temporary disability, however, prior notice does not seem to be critical because the issue may be presented as late as the trial. N.J.A.C. 12:235-3.2(a). This may be due to the fact that it is assumed that a respondent is on notice of a temporary period of disability due to the nature of the injury, the treatment rendered, a petitioner's response to the treatment, and his employment history following the workplace accident. In addition, the ruling in Hawthorne, supra, suggests that a claim does not necessarily have to specify whether the petitioner is seeking temporary or permanent relief, in which case both will be considered. 127 N.J.L. at 502. Therefore, in a situation such as this case, in which petitioner did not specify that he was only seeking permanent disability benefits in his claim, the evidence adduced at trial, including the medical evidence offered by the employer, placed Atlantic States on notice that petitioner suffered some period of temporary disability.

Atlantic States also argues that the judge of compensation failed to explain her award of temporary benefits and that such benefits were not based on sufficient credible evidence in the record. Given the standard governing an award of temporary disability benefits and the contested medical evidence, the judge of compensation erred when she awarded such benefits without explanation. This omission requires a remand for the judge to make detailed factual findings on the issue of temporary disability benefits.

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." Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966). The Workers' Compensation Act, N.J.S.A. 34:15-1 to -69.3, has been consistently accorded a liberal construction. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). An employee, who suffers from an injury producing temporary disability, may recover 70% of the employee's weekly wages during the period of disability, not to exceed 400 weeks. N.J.S.A. 34:15-12a. Temporary disability benefits are payable from the first day the employee is unable to work because of an injury until "the first working day that the employee is able to resume work and continue permanently thereat." N.J.S.A. 35:15-38.

Temporary disability continues until the employee is able to resume work and continue permanently at that position or until the employee is as far restored as the permanent character of the injuries will permit. Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div. 1952). Actual absence from work is a prerequisite for a temporary disability award; and an injured worker who resumes work after a disability period, but who later experiences a relapse, may recover for the intermittent or recurrent intervals of temporary disability. Cunningham, supra, 386 N.J. Super. at 428.

As to the temporary disability award, the parties and this court have been provided a conclusion without specific findings of fact. We are unable to determine whether there is substantial credible evidence to support the ultimate conclusion that petitioner was unable to return to work due to the intractable pain associated with the initial injury and the consequent anxiety and depression experienced by petitioner for the 264 weeks between July 19, 1999 and August 13, 2004. For example, medical records received in evidence reveal that from July 2000 until early 2001 petitioner's principal complaint was nocturnal involuntary movement of his left leg that interrupted his sleep. In fact, in July 2000, a physician noted that "he has very little pain at all in the foot" and his chief complaint was the myoclonic movements of his leg. The next mention of unbearable pain in his left foot in the medical records provided to this court is not until February 2002.

The judge also does not explain what facts led her to conclude that his medical and mental situation precluded all work until August 13, 2004. Our review of the record reveals evidence that petitioner's condition, particularly his psychiatric disability, improved since he commenced treatment.

This improvement undoubtedly informed the extent of the permanent award. The judge does not inform this court or the parties whether this treatment response bears on the temporary treatment award.

We, therefore, remand to allow the judge of compensation to review the record and provide specific findings of fact in support of her conclusion that petitioner remained unable to work for the 264 weeks identified in her opinion and judgment.

Affirmed in part; remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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