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Mary Gonzalez v. Bristol-Myers Squibb

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2011

MARY GONZALEZ, PETITIONER-RESPONDENT,
v.
BRISTOL-MYERS SQUIBB, RESPONDENT-APPELLANT.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1994-7489.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 counsel followed one month later requesting Social Security information from respondent, which it received from respondent's counsel the next month.

While observing that BMS's attorney thereafter "promptly wrote to endeavor to ascertain the appropriate offset and also questioned the social security figures[,]" the judge noted that the issue remained unresolved and the motion to modify the award was not filed until November 2007. The judge reasoned:

Clearly, the burden rests with respondent to assert its rights and apply for the appropriate offset. It failed to do so until November 13, 2007. I calculate its overpayment from the date the motion was filed until the order entered June 10, 2008 to be [thirty] weeks, an overpayment of $1[]785.30. From June 10, 2008 to the present, [seventy-eight] weeks, respondent has underpaid petitioner for a total of [$]1[]936.74, leaving a balance of $151.44 owed to petitioner. I enclose my order.

The present appeal followed.

Appellant raises the following points for our consideration:

[POINT I]

THE COURT BELOW ERRED IN NOT ALLOWING REIMBURSEMENT FROM THE RESPONDENT/PETITIONER TO THE APPELLANT/RESPONDENT FOR AN OVERPAYMENT OF BENEFITS. THE APPELLANT WAS SIMPLY FOLLOWING THE LANGUAGE OF THE ORDER GRANTING TOTAL DISABILITY ON JULY 10, 2002 ALLOWING THE APPELLANT TO SEEK CREDIT FOR THE OVERPAYMENT. [POINT II]

THE COURT BELOW ERRED IN FINDING THAT THE APPELLANT/RESPONDENT DID NOT TIMELY RAISE THE ISSUE OF THE OVERPAYMENT. THE ORDER OF PERMANENT AND TOTAL DISABILITY BENEFITS ENTERED ON JULY 10, 2002 DID NOT STIPULATE A TIME WITHIN WHICH THE APPELLANT MUST RAISE AN OVERPAYMENT ISSUE AND ASSIGNMENT OF A TIME FRAME WAS ARBITRARY AND CAPRICIOUS. [POINT III]

THE COURT BELOW DID NOT EXPLAIN THE DISCREPANCY IN FIGURES BETWEEN THE COURT'S ORDERS OF JUNE 10, 2008 AND DECEMBER 8, 2009. THE COURT BELOW AGREED WITH THE APPELLANT INITIALLY REGARDING THE OVERPAYMENT AND OFFSET RATE BUT WITHOUT EXPLANATION, ISSUED A CONTRADICTORY ORDER.

We review BMS's contentions in light of our standard of review. On appeal, we accord deference to "the factual findings and legal determinations made by the [j]udge of [c]ompensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). However, the deference we accord is not owed "where the judge has applied the wrong legal principles in coming to that conclusion." Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 368 (App. Div. 1996).

In Hajnas v. Engelhard Mineral & Chemical Company, 231 N.J. Super. 353, 354 (App. Div. 1989), we set forth procedures to address issues of overpayment. There, Engelhard sought to recoup payments made to its deceased injured worker's spouse after she remarried without reporting her change in status to Engelhard. Id. at 355-56. We concluded that the Division of Workers' Compensation (Division) had jurisdiction to determine whether an original award to the spouse should be modified because of the fact of her remarriage. Id. at 364. We found that such a proceeding was within the jurisdiction of the Division because it resolved issues related to "certain prior set-offs and credits which might affect the amount of its final award if it bears on issues committed to its exclusive jurisdiction." Id. at 361. We then noted, however, that the Division still has only limited jurisdiction which may not be expanded by "consent, waiver, estoppel, or judicial inclination." Riccioni v. Am. Cyanamid Co., Calco Chem. Div., 26 N.J. Super. 1, 5 (App. Div.), certif. denied, 13 N.J. 289 (1953).

The procedure we outlined in Hajnas called for the Division to first determine whether a modification was in order based upon the spouse's remarriage. Hajnas, supra, 231 N.J. Super. at 363. In the event Englehard was successful, we determined that it could then institute enforcement proceedings in the Superior Court through a summary proceeding. Id. at 364. We reasoned that "[i]n this way if Engelhard is truly an aggrieved party, at least it may obtain a meaningful relief, yet may do so without any infringement upon the separate jurisdiction allocated to the Division and the courts, as mandated by statute." Ibid. (citing Zietko v. New Jersey Manufacturers Ins. Co., 132 N.J.L. 206 (E. & A. 1944)).

Here, based upon the submissions, the compensation judge determined that BMS was entitled to a setoff for SSD benefits Gonzalez was receiving as of March 1, 2000, but declined to award a setoff to BMS retroactive to that date because it did not act reasonably in seeking an amended judgment. Instead, she calculated BMS's "overpayment from the date the motion was filed[,]" November 13, 2007.

The record reflects some intermittent activity on the part of BMS to address the SSD setoff issue, once in 2004 and again in 2005. It is, however, undisputed that there is nothing in the record demonstrating any effort by BMS to formally resolve the matter after December 2005 until it filed its motion in November 2007. We, therefore, find no error in the court's determination that the effective date for applying the setoff was November 13, 2007, due to its failure to timely assert its rights.

The compensation judge also concluded that the amount of the setoff would be based upon Gonzalez's initial SSD entitlement rate of $615.10, "not the amount she was receiving on March 1, 2000[.]" We find no support in the record for the compensation judge's conclusion that the weekly offset rate should be $59.51 per week rather than $84.34.

To begin, according to respondent's brief, she was not receiving SSD benefits on March 1, 2000. Therefore, the compensation judge mistakenly found that Gonzalez was receiving SSD as of March 1, 2000. Next, we observe that the compensation judge failed to explain why she concluded the initial SSD entitlement of $615.10, as argued by respondent, rather than the $722.70, as urged by BMS, was the figure that should be used to calculate the setoff amount. The only record before the judge was the untitled printout purportedly from SSA. That document, however, provides no guidance on how to calculate the setoff. In respondent's brief, it is contended that Gonzalez ceased receiving SSD in 1996 and was "re-approved" for SSD in 2003. If this representation is accurate, then additional questions are implicated. For example, there is nothing in the record to indicate whether the payments that allegedly resumed in 2003 included past benefits or whether the SSD benefit that was subsequently approved represented benefits solely going forward.

The compensation judge made no factual findings in this regard and we doubt that such findings could properly be made based solely upon a purported printout from SSA. Additionally, while Gonzalez argues that the compensation judge's calculation is based upon her "initial" SSD benefit, she cites no statute or regulation to support this contention. Her contention in her brief that under 42 U.S.C.A. § 424, "increases in benefits made after the first reduction (i.e. cost of living) are not used in the offset computations" is not helpful. Section 424 of Title 42 was repealed by Pub. L. No. 85-840, Title II, § 206, August 28, 1958. In its place is 42 U.S.C.A. § 424a. There is no reference to language denominated "initial entitlement" anywhere in this section. There is, however, reference to "earnings as initially determined," but that is in the context of "redetermination" of benefits as required under subsection (f)(1).

In the second calendar year after the year in which reduction under this section in the total of an individual's benefits under section [42 U.S.C.A. § 423] and any benefits under section [42 U.S.C.A. § 402] based on his wages and self-employment income was first required (in a continuous period of months), and in each third year thereafter, the Commissioner of Social Security shall redetermine the amount of such benefits which are still subject to reduction under this section; but such redetermination shall not result in any decrease in the total amount of benefits payable under this subchapter on the basis of such individual's wages and self-employment income. Such redetermined benefit shall be determined as of, and shall become effective with, the January following the year in which such redetermination was made.

[42 U.S.C.A. § 424a(f)(1).]

Paragraph (2) of this same subsection then provides: "In making the redetermination required by paragraph (1), the individual's average current earnings (as defined in subsection

(a)) shall be deemed to be the product of (A) his average current earnings as initially determined under subsection (a)[.]" Thus, this language applies to redetermination as distinguished from reinstatement. This record provides no information as to the nature or category of the benefits Gonzalez was subsequently approved to receive.

We observe further that in cases of "reinstatement" of SSD benefits, a different formula is utilized to compute the primary insurance amount.

For purposes of computing the primary insurance amount of an individual whose entitlement to benefits under this section is reinstated under this subsection, the date of onset of the individual's disability shall be the date of onset used in determining the individual's most recent period of disability arising in connection with such benefits payable on the basis of an application.

[42 U.S.C.A. § 423(i)(4)(B)(ii).]

In short, resolution of the correct setoff amount may require taking testimony if the parties do not reach a stipulation relative to the information contained in the purported SSA printout. In the absence of appropriate factual findings, we are unable to engage in meaningful appellate review. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) (noting that meaningful appellate review is precluded in the absence of specific reasons and analysis). We therefore remand for further proceedings to determine the initial entitlement date and the rate of setoff based upon that date.

Finally, consistent with our decision in Hajnas, in the absence of an agreement between the parties, any credit to which BMS may be entitled must be pursued in an enforcement action in the Law Division through a summary proceeding. Hajnas, supra, 231 N.J. Super. at 364.

Affirmed in part, reversed in part, and remanded for further proceedings.


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