On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Case No. 2005-25507.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
An employer, Giovanni's Trattoria, appeals from an award of workers' compensation to its part-time employee, Rose Gruzlovic. Prior to her work-related accident Gruzlovic, who was about seventy-seven years of age at that time, had worked one day a week for thirteen years. The employer contends that the Workers' Compensation Court erred in calculating compensation as if Gruzlovic worked forty hours per week. We agree and reverse.
The employer also contends that the evidence does not support a finding of twenty-five percent partial total disability. We affirm that determination because it is supported by "sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D).
Giovanni's Trattoria is a cafeteria situated on a property used for auto auctions on Wednesdays. Wednesday is the only day the cafeteria is open. Gruzlovic's job entailed serving the food and keeping the cafeteria clean. On April 27, 2005, Gruzlovic tripped and fell while cleaning up. She had been working in the same cafeteria for eight to nine hours every Wednesday since 1993. She was paid an hourly wage, which was $10.50 at the time of the accident.
During the thirteen years Gruzolvic worked in the cafeteria, she did not have or seek either full-time or additional part-time employment. After the accident, Gruzlovic did not go back to work or seek other work. She explained, "I thought I had my share."
Workers' compensation is awarded pursuant to a "'longstanding and comprehensive statutory scheme.'" Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 42 (2008) (quoting Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 30 (2006)). The act, N.J.S.A. 34:15-1 to -142, "is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Id. at 42 (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974)).
The calculation of compensation for an employee with a permanent disability is governed by N.J.S.A. 34:15-37, which in pertinent part provides:
"Wages," when used in this chapter shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. . . . When the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by the customary number of working days constituting an ordinary week in the character of the work involved . . . .
A different method of calculation is required in cases involving temporary disability for a part-time employee. In that circumstance, if the employee worked less than the customary number of working days constituting an ordinary week in the character of the work involved, the weekly wage for the purposes of compensation under provisions of [N.J.S.A. 34:15-12a (which address temporary disability)] only shall be found by multiplying the hourly rate by the number of hours of work regularly performed by that employee in the character of the work involved. [N.J.S.A. 34:15-37.]
In Katsoris v. S. Jersey Publ'g Co., 131 N.J. 535, 541 (1993), the Supreme Court interpreted the statute. Accordingly, our role is to apply the statute in conformity with Katsoris.
Both passages of the statute quoted above were amended in 1979 and Katsoris discusses the ...