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Ottens v. Board of Review

July 13, 2010

JOHN OTTENS, APPELLANT,
v.
BOARD OF REVIEW AND MURPHY BUS SERVICE, INC., RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 199,117.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 24, 2010

Before Judges Graves and Newman.

Appellant John Ottens (Ottens) appeals from a final decision of the Board of Review (the Board) affirming a determination of an Appeal Tribunal (the Tribunal) dated April 8, 2009, requiring him to reimburse the Division of Temporary Disability Insurance (the Division) in the amount of $11,696 paid as temporary disability benefits. We conclude from our review of the record and the briefs, and from oral argument, that there is sufficient credible evidence to support the Board's findings and conclusions. Accordingly, we affirm.

Respondent Murphy Bus Service (Murphy) hired Ottens as a mechanic in 1997. In 1998, Ottens was diagnosed with neurofibromatosis type I after a medical evaluation revealed multiple neurofibromas, including a "cervical neurofibroma," in his neck and shoulder area. As a result, he underwent surgery in December 1998 for the removal of a tumor that had grown on his spinal cord nerves.

On September 23, 2003, Ottens injured his shoulder in a work-related accident while employed by Murphy. He began receiving temporary workers' compensation benefits through a private carrier, New Jersey Manufacturers (NJM), on a weekly basis in the amount of $623.21, from September 23, 2003 through April 2004, for a total of $18,518.24.

On December 30, 2003, Dr. Mark Rametta stated in a certification supporting Ottens's disability benefits claim that he diagnosed Ottens with "neurofibromyositis," "cervical sprain [and] strain," "shoulder separation," and "subluxation." In a report dated June 3, 2004, Dr. Richard Pelosi, Ottens's neurologist, stated that the work-related accident on September 23, 2003, aggravated Ottens's "underlying [neurological] condition." Dr. Pelosi further reported that the accident caused the following injuries: "[t]raumatic cervical sprain with fibromyositis"; "chronic shoulder separation or subluxation with instability on the right"; and "bilateral shoulder tendonitis."

Ottens also received medical care authorized by Murphy from Dr. Robert Fernand. According to Dr. Fernand, Ottens reached a maximum medical recovery from his September 2003 work-related injury in April 2004. Therefore, his NJM temporary workers' compensation benefits terminated at that time. But because he was still unable to work, Ottens filed a claim petition with the Division of Workers' Compensation alleging he suffered permanent injuries. While that claim was pending, Ottens also filed a claim under the New Jersey Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -60, and he collected weekly disability benefits of $450 from April 21, 2004, through October 19, 2004, totaling $11,696.

On January 9, 2004, prior to receiving State disability benefits, Ottens signed a "Certification of Contested Workers' Compensation Claim" in which he agreed he was seeking temporary disability benefits from the Division for a work-related disability and agreed to fully reimburse the Division if he received "any award or settlement for such disability... under the Workers' Compensation Law." Ottens also signed an identical subrogation agreement approximately five months later on June 24, 2004.

On October 27, 2004, the Division issued a Notice of Lien, which was filed with the workers' compensation court and served on Ottens. The Notice of Lien stated: "This action is taken to ensure that the Division's right of subrogation in the matter is protected. That is, when an award/settlement is issued on your workers' compensation case, this agency is entitled to receive reimbursement of temporary disability benefits paid to you... for the job-related condition."

Ottens subsequently appealed the Notice of Lien on July 31, 2008, pursuant to N.J.A.C. 12:235-3.18(a)(8)(ii) to -(a)(10).*fn1

On the same day, the workers' compensation court found that Ottens was totally and permanently disabled as of October 20, 2004, and was entitled to 450 weeks of compensation. The order entered on July 31, 2008, provided that Ottens suffered "40% permanent total, orthopedic and neurological, right shoulder tendonitis and bilateral carpal tunnel syndrome with cervical radiculopathy." Ottens was awarded the total sum of $112,177.80 (180 weeks at $623.21) for his work-related injuries. The balance of the award, 270 weeks at $623.21 per week was to be paid by the Second Injury Fund.*fn2 The order also provided that the outstanding Temporary Disability Benefits lien of $11,696 would be held in the trust account of Ottens's attorney pending a determination on whether reimbursement was required.

Following a telephonic hearing on February 2, 2009, the Tribunal determined that Ottens was required to refund the disability benefits he received from the Division in the sum of $11,696 because he received workers' compensation benefits for the same ...


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