On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2002-27659.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
In this appeal, we are asked to determine whether a judge of compensation must award counsel fees in addition to a penalty when an employer fails to make timely payment of temporary disability benefits and the appropriate standard to fashion the reasonable attorneys' fees allowed by statute. We hold that an award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. See N.J.S.A. 34:15-64. We, therefore, reverse and remand for entry of an appropriate fee.
Petitioner Kubra Quereshi filed an amended claim petition in the Division of Workers' Compensation on or about June 12, 2003, for a work-related injury suffered on April 26, 2002. She also filed a claim petition on or about June 30, 2003, alleging an occupational injury to her upper and lower spine, as well as orthopedic, neurologic, and neuropsychiatric injuries. On June 25, 2003, petitioner filed a motion for temporary disability benefits and medical benefits.
The motion was granted on October 22, 2003. In addition to ordering payment of temporary disability benefits to petitioner, the judge of compensation also ordered respondent employer to pay the temporary disability benefits lien of $5,995.40 to the State Department of Labor. The employer was also directed to pay $4,941.92 in past due benefits directly to petitioner, as well as to reimburse petitioner $1,235.25 for out-of-pocket medical expenses, and to pay ongoing temporary disability benefits, medical benefits, and attorneys' fees.
The employer failed to timely pay the temporary benefits as required by the October 22, 2003 order. As permitted by N.J.S.A. 34:15-28.1 (section 28.1), petitioner moved for the imposition of a penalty and other relief. Finding that respondent had paid the benefits more than thirty days after entry of his order and finding no excuse for the late payment, the judge of compensation assessed a penalty of 25% of the temporary benefits owed to petitioner, i.e., $1,235.25, on February 25, 2004. The judge of compensation, however, did not award attorneys' fees. As permitted by Rule 2:5-1(b), the judge of compensation amplified his earlier decision following filing of the notice of appeal.*fn1 He noted that he had not awarded attorneys' fees because he had awarded fees when he entered his original order for benefits in October 2003, and he considered that award sufficient.
Section 28.1 provides that workers' compensation benefits are to be paid promptly, and a penalty shall be assessed and reasonable attorneys' fees shall be paid when a respondent unreasonably or negligently delays or refuses to pay temporary disability compensation. A delay of thirty days or more gives rise to a rebuttable presumption of unreasonable and negligent conduct by the respondent. The statute provides:
If a self-insured or uninsured employer or employer's insurance carrier, having actual knowledge of the occurrence of the injury, or having received notice thereof such that temporary disability compensation is due pursuant to [N.J.S.A.] 34:15-17, unreasonably or negligently delays or refuses to pay temporary disability compensation, . . . it shall be liable to the petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals. A delay of 30 days or more shall give rise to a rebuttable presumption of unreasonable and negligent conduct on the part of a self-insured or uninsured employer or an employer's insurance carrier. [N.J.S.A. 34:15-28.1.]
Petitioner argues that the award of attorneys' fees is mandatory. Respondent argues that the award remains a discretionary decision.
The rules for ascertaining legislative intent are well known. First, we examine the plain language of the statute "and ascribe to the statutory words their ordinary meaning and significance." DiProspero v. Penn, 183 N.J. 477, 492 (2005). If the language is clear, our inquiry is ordinarily complete.
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007). A court may consider other sources to determine the meaning of a statute only if the plain language of the statute is susceptible to more than one meaning. AponteCorrea v. Allstate Ins. Co., 162 N.J. 318, 323 (2000). When the language is unclear, an available source to determine the meaning ...