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Linda Scott v. County of Bergen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2011

LINDA SCOTT, PETITIONER-APPELLANT,
v.
COUNTY OF BERGEN, RESPONDENT-RESPONDENT.

On appeal from the State of New Jersey, Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. 2006-24902.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2011

Before Judges Baxter and Koblitz.

Appellant Linda Scott appeals from a determination by the Judge of Compensation that her former employer, the County of Bergen (Bergen), is entitled to an offset pursuant to the provisions of N.J.S.A. 34:15-43 and N.J.S.A. 34:15-29, permitting Bergen to avoid the payment of temporary compensation benefits to appellant due to her receipt of an ordinary disability retirement pension from the Police and Firemen's Retirement System (PFRS). We dismiss this appeal as interlocutory because it does not present an issue that should be decided at this time and no application for leave to appeal was filed.*fn1 R. 2:2-4. We address the facts only briefly. Scott, who is forty-two years old, was a detective in the Bergen County Prosecutor's Office. She first injured her right shoulder in a work-related injury in 1994, and in 1996 was awarded 17.5% of partial total disability. She sustained another work-related injury involving this shoulder on August 29, 2002, and filed a claim with the Workers' Compensation court. On April 16, 2004, she received an increased award of 25% of partial total for "aggravating [her] previous right shoulder condition." On April 27, 2006, after her return to work, appellant sustained a third work-related right shoulder injury while qualifying with her service weapon at the Bergen County Police Academy. She was unable to return to work at the Prosecutor's Office and has been receiving medical treatment since that time. She did work for four months in the private sector, but was unable to continue due to the surgery required as a result of this third injury to her right shoulder.

Bergen filed an involuntary ordinary disability retirement application with PFRS in September 2006, claiming Scott was psychologically unfit for duty as of June 1, 2006. Scott filed an application in October 2006, requesting an accidental disability retirement stemming from her 2002 injury. On March 10, 2008, PFRS denied her accidental disability retirement request, granting an ordinary disability retirement as a direct result of the 2002 injury. See Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., ___ N.J. ___ (2011) (slip op. at 27) (explaining that one of several differences between accidental and ordinary disability is that "the accidental disability benefit is greater"); Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212 (2007) (stating, among other requirements, that to receive accidental disability benefits, the traumatic event resulting in the disability must be "caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work)").

Scott is receiving this ordinary disability retirement. In her 2006 claim, Scott maintained before PFRS that she was entitled to accidental benefits based on her 2002 shoulder injury. She now maintains that because she was granted ordinary disability benefits based on a psychological disability, these benefits should not be used to offset the temporary disability awarded due to the re-injury of her right shoulder. She also argues that even if the ordinary disability is related to a shoulder injury, it is related to the 2002 shoulder injury, as indicated by PFRS, and not the 2006 shoulder injury. Bergen sought the involuntary retirement on a psychological basis in 2006, after Scott's 2006 re-injury. The Judge of Compensation determined that Bergen is entitled to offset the temporary disability benefits by the pension. Scott receives $3425.59 per month from her pension, and any amount she would receive from temporary disability would be offset by her pension.

Scott has filed with the Division of Workers' Compensation both an application to modify the second award of 25% of partial total and a separate formal claim petition for the 2006 accident. She acknowledges in her brief that both of these applications are pending.

We have permitted an appeal as of right by a respondent from an order granting temporary disability benefits to the petitioner under the limited rationale that when a respondent pays temporary disability benefits, it is equivalent to a final judgment because "[i]t may be docketed in Superior Court and executed upon. It is presently payable in the absence of a stay." Della Rosa v. Van-Rad Contracting Co., 267 N.J. Super. 290, 294 (App. Div. 1993). "A serious injustice might occur if a respondent were required to pay an award for temporary disability and medical services and then be unable to obtain the return of its monies in the event of reversal. It would also be a matter of concern to petitioner to receive such payments with the prospect of possible repayment being required." See Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352, 360 (App. Div. 1986), certif. denied, 107 N.J. 109 (1987).

In contrast, in this matter an incorrect offset of temporary benefits can be remedied by a retroactive award of benefits. Thus, this appeal is interlocutory.

To prevent piecemeal review, we only grant leave to appeal an interlocutory order "'in the interests of justice.'" Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (quoting R. 2:2-4). Although we have granted leave to appeal on our own motion where the appeal raised an important, unresolved legal issue, see Eisen v. Kostakos, 116 N.J. Super. 358, 366 (App. Div. 1971), "[o]ur stated preference is to dismiss the appeal of an interlocutory order that has been filed without our leave." Grow Co. v. Chokshi, 403 N.J. Super. 443, 463 (App. Div. 2008). Leave to appeal was not sought nor does appellant argue such leave should be granted. Scott is receiving the ordinary disability pension; thus, the lack of additional funds from a temporary disability payment does not leave her destitute. This appeal neither presents a situation where the interests of justice require us to rule on the merits nor does it address a legal issue of general importance likely to recur often.

Dismissed.


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