On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 1989-4394.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Petitioner Richard Holle had a compensable accident on July l5, 1985, when he fell from a ladder while working at respondent's location, a family funeral home, resulting in a workers' compensation judgment entered on July 27, 1990, for 60% of partial total disability. A first application for modification filed in l996 resulted in a May 6, 1998 judgment for increased disability to 75% of partial total.
Petitioner filed a second application for review and modification in March 2004. Trial commenced in October 2008 and concluded a month later, during which petitioner testified, as did medical witnesses on behalf of both parties. On February l8, 2009, the judge of workers' compensation issued a bench decision, memorialized in an order: (1) declaring petitioner to be totally disabled as of November 24, 2004; (2) adjudging the Second Injury Fund not responsible for any of the disability; (3) ordering respondent to pay petitioner $5 per week in benefits pursuant to N.J.S.A. 34:15-12(b) from November 24, 2004, "and thereafter until the parties agree that Petitioner's earnings do not exceed $450 per week*fn1 or some portion thereof"; and (4) awarding petitioner a $1,000 counsel fee.
Petitioner only appeals the last two portions of the judgment (#3 and #4). Petitioner argues in his brief that there are no proofs in the record to support the trial court's finding that petitioner is obtaining or securing wages or earnings for services rendered to the funeral home entitling respondent to a credit under N.J.S.A. 34:15-12(b), and that the amount of the counsel fee award is "manifestly unjust" in view of the result of lifetime benefits his attorney obtained for him after a lengthy trial. Accordingly, he requests we reverse and remand with instructions to the trial court to enter judgment beginning November 24, 2004, in the amount of $269 per week for the balance of petitioner's life and to assess counsel fees based on the present value of the benefits secured in this litigation. At oral argument, petitioner's counsel added the alternative argument that because petitioner was deemed permanently disabled as of November 24, 2004, his 450 weeks of entitlement to benefits would commence at that time and it would thus not be relevant whether he was working for purposes of the $5 statutory hold until approximately June of 2013. We reverse and remand.
The relevant portion of N.J.S.A. 34:15-12(b) provides:
b. For disability total in character and permanent in quality, 70% of the weekly wages received at the time of injury, subject to a maximum and a minimum compensation as stated in subsection a. of this section. This compensation shall be paid for a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident, in which case further weekly payments shall be made during the period of such disability, the amount thereof to be the previous weekly compensation payment diminished by that portion thereof that the wage, or earnings, the employee is then able to earn, bears to the wages received at the time of the accident. If the employee's wages or earnings equal or exceed wages received at the time of the accident, then the compensation rate shall be reduced to $5.00. In calculating compensation for this extension beyond 450 weeks the above minimum provision shall not apply. [Emphasis added.]
The bulk of the testimony before the judge of compensation by petitioner and the doctors involved petitioner's medical condition, which is not challenged in this appeal. Petitioner also testified that in 2004 he sold his children the funeral business and real estate that had been in his family for l57 years, payable by a twenty-year installment note executed around December 2005. Neither the amount nor terms of the installment note were disclosed and the document was not produced. Petitioner further testified he ceased working because of the pain and has not drawn pay since that time. He acknowledged he resides on the premises, maintains his state funeral license, continues to be listed as a director with his son and daughter; and helps out occasionally by giving his children the benefit of his experience by answering their questions, meeting with old friends who have become clients, and assisting in making funeral arrangements when his children are unavailable.
The judge noted this was a unique situation in which petitioner and respondent were the same person because petitioner is self-employed. The issue of offset of petitioner's benefits for wages or earnings under N.J.S.A. 34:15-12(b) was not addressed at trial. Nevertheless, the judge of compensation concluded that "while [petitioner] is under a contract of sale for which he receives payments in lieu of salary it is his presence and funeral director's license and years of experience that give the business the value above the property and physical equipment[,]" thus petitioner continues to work, and respondent is to pay N.J.S.A. 34:15-12(b) benefits at $5 per week from the November 24, 2004 date of permanent disability.
N.J.S.A. 34:15-37 defines wages as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident." Petitioner testified he was not paid any wages, which was not disputed by respondent. If the judge's intent was to impute income to petitioner for performing funeral director duties, the judge did not make this finding and did not quantify the amount. Nor was there any basis for the judge to unilaterally characterize the installment contract as the equivalent of wages or earnings or to conclude that such amount exceeded petitioner's earnings at the time of the accident. We therefore reverse and remand this matter for further findings or proceedings in this regard. We take no position as to whether petitioner's receipt of payments under the installment contract can qualify as wages or earnings under the statute as it is not necessary to do so based on the record before us.
On remand, petitioner can also argue to the trial court his challenge to the adequacy of the counsel fee award and can advance his new ...