On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1994-7489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010
Before Judges Sapp-Peterson and Fasciale.
Appellant, Bristol-Myers Squibb (BMS), appeals from the December 8, 2009 order of the judge of compensation modifying her June 10, 2008 order. We affirm that portion of the order directing an offset against respondent Mary Gonzalez's receipt of Social Security benefits as of November 8, 2007, but otherwise reverse and remand for further proceedings fixing the amount of the offset.
Gonzalez sustained a work-related injury on September 16, 1992. She was awarded temporary disability benefits and also received Social Security Disability (SSD) benefits. On July 10, 2002, the compensation judge entered an Order for Judgment Total Permanent Disability (Judgment), which awarded respondent 450 weeks of benefits payable at $352.52 per week commencing March 1, 2000, payable through October 15, 2008. Paragraph nine of the compensation judge's statement provided as follows:
At the time of the entry of this [o]rder, [p]petitioner is in the process of seeking Social Security disability benefits. In the event [p]petitioner is successful in that regard, as a result of which her workers' compensation benefits, when combined with her Social Security benefits[,] exceed [eighty percent] of her average earnings per week, entitling the [r]espondent to an offset, the [r]espondent shall have the right to make application to the court to amend the instant [o]rder accordingly.
Although BMS claims in its brief that its carrier "made periodic follow-ups to counsel for Gonzalez to determine the Social Security status[,]" there is no corresponding citation to the record to support this statement. The record discloses that the first formal application to the compensation judge for relief related to paragraph nine of the July 10, 2002 judgment occurred in July 2005. At that time, BMS sought an order "compelling the petitioner to execute a Social Security authorization for the purpose of obtaining [eighty percent] ACE [average current earnings] information and Social Security disability initial entitlement information." (emphasis added). That application resulted in a December 19, 2005 order directing "[p]petitioner to provide authorization for release of social security benefit information within [thirty] days."
On November 13, 2007, appellant's counsel filed a third Application for Review or Modification of the July 10, 2002 judgment. The application sought an order awarding an $84.32 per week offset against respondent's benefits until she reached the age of sixty-two based upon information contained in a computer-generated printout from the Social Security Administration (SSA).*fn1
On June 10, 2008, the compensation judge entered an amended order permitting future social security offsets of $84.34 per week until respondent reached age sixty-two. The order reserved decision on the issue of possible overpayments. The order was also issued without prejudice. Nine days later, respondent filed opposition to BMS's motion and the award of offset credits. Respondent argued that BMS was not entitled to recover past entitlements because of laches, that such an award would result in prejudice to respondent and would be inequitable due to her limited income.
In a subsequent written opinion issued on December 9, 2009, the compensation judge reversed her earlier ruling, finding:
The [S]ocial [S]security offset is based on the initial entitlement, which was $615.10 per month, not the amount she was receiving on March 1, 2000, the date she was adjudicated in this court as totally and permanently disabled. However, that date does mark the right of offset to [BMS] under our statute.
She then determined that BMS was entitled to offset its payment by $59.51 a week, not the $84.34 reflected in her June 8, 2009 order, which BMS had based upon the $722 SSD entitlement SSA approved as Gonzalez's benefit amount effective May 2000.
The compensation judge also concluded that BMS essentially sat on its rights, despite the clear language of Paragraph 9 of the July 10, 2002 order permitting it to seek an amendment of the judgment based upon Gonzalez's receipt of SSD. She pointed out that when respondent's 450 weeks of total disability expired on May 4, 2004, BMS stopped all payments to respondent, prompting a motion from respondent to enforce litigant's rights, pursuant to N.J.S.A. 34:15-12(b), and that it was not until the court granted this motion on June 22, 2004, that correspondence from BMS's ...