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John A. Gioia v. Herr Foods


October 11, 2011


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-4459.

Per curiam.


Argued September 14, 2011

Before Judges Cuff and St. John.

Appellant, Herr Foods, Inc. (Herr), appeals from the August 25, 2010 order of the Division of Workers' Compensation (Division) granting John A. Gioia (Gioia) temporary disability benefits and statutory penalties. We reverse and remand for further proceedings.

On November 23, 2007, Gioia stepped out of his delivery truck and sustained an injury to his right ankle. There is no dispute between the parties that Gioia was in the employ of Herr on the date of the accident and that the accident arose out of and in the scope of his employment. It is also undisputed that approximately one month later, Gioia underwent an MRI which revealed a sprain of the deltoid ligaments and an avulsion fracture. The parties resolved the permanent disability aspects of the case. At issue is Gioia's eligibility for temporary disability benefits.

We discern the following facts and procedural history from the record on appeal. On the date of the accident, medical treatment was provided at Kessler Memorial Hospital in Hammonton. X-rays were taken of the injured right ankle and Gioia was diagnosed with an acute right ankle sprain. Gioia was accompanied to Kessler by his supervisor, who required Gioia to submit to a drug screen test pursuant to company policy.

The accident occurred on the Friday after Thanksgiving and Gioia was not scheduled to work the following Saturday or Sunday and, as a result of the accident, he requested off Monday, November 26, and Tuesday, November 27, 2007. On November 27, Gioia was again seen at Kessler, and he was advised that he could perform light-duty work as of November 28, 2007. On November 27, the drug screen test revealed that Gioia tested positive for cocaine on the date of the accident. On November 28, the day Gioia would have commenced light-duty work, he was informed that his employment with Herr was terminated for violation of the company's drug-free workplace policy.

Herr did not provide Gioia with light-duty restricted work nor temporary disability benefits. On April 7, 2008, Gioia filed a motion for temporary disability benefits which was ultimately abandoned by agreement of the parties on June 24, 2008. On June 22, 2010, the parties entered into an Order Approving Settlement, resolving the permanent disability claims, and the parties' respective positions on the issue of temporary disability benefits were heard by a Judge of Compensation (JOC). The JOC issued an order approving the settlement of the permanent disability claim, but ordered a trial on the issue of temporary disability benefits.

The trial commenced on December 2, 2009, and a decision was rendered by the court on July 21, 2010. In his findings of fact and conclusions of law, the JOC found that Gioia was in the employ of Herr when, on November 23, 2007, he injured his right ankle in the course of his employment. The JOC further found that Gioia could have returned to light-duty work on November 28, 2007, but that light-duty work was not offered to Gioia by Herr.

The JOC determined that Herr is responsible to pay temporary compensation for the time claimed, November 28, 2007 to May 22, 2008. The legal underpinnings of the decision rested on the JOC's findings that Gioia had a job with Herr at the time he became disabled and, as a result, sustained a current loss of income. Although there was a plan by Herr to provide light-duty work, that plan was never effectuated. The court further found that Gioia was capable of taking such an offer and would have done so, but no offer for light-duty was ever made. The JOC further found that although Herr had the right to terminate Gioia, the right of termination does not extend to withholding benefits due under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. The JOC also found that Gioia was able to return to light-duty work during the time of his temporary disability. The court imposed a penalty of twenty-five percent of the amount then due, plus reasonable legal fees, which the JOC determined to be twenty percent of the amount of the temporary disability benefits due, plus legal fees of twenty percent of the twenty-five percent penalty amount.*fn1

"There are well-recognized principles governing the judicial review of administrative agency determinations" and appellate courts "have a limited role in the review of such decisions." In re Anthony Stallworth, ___ N.J. ___ (2011) (slip op. at 13) (citations omitted). Our review of workers' compensation decisions is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); see also Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 348 n.4 (App. Div.) (a "judge of compensation's findings are binding when based . . . on 'sufficient credible evidence in the record'"), certif. denied, 201 N.J. 443 (2010).

Accordingly, we will not upset the determinations of a judge of compensation "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). The judge of compensation's ultimate determination must be based on articulated reasons sustained by proofs in the record. See Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981).

Notwithstanding the foregoing, if an appellate court finds that the workers' compensation court's decision is arbitrary, capricious or unreasonable, and "[w]here our review of the record leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made, we may appraise the record as if we were deciding the matter at inception and make our own findings and conclusions." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (citations and internal quotations omitted), certif. denied, 122 N.J. 372 (1990); see also In re Taylor, 158 N.J. 644, 657-58 (1999).

"The purpose of temporary disability benefits is to provide an individual who suffers a work-related injury with a 'partial substitute for loss of current wages.'" Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 428 (App. Div.) (quoting Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966)) certif. denied, 188 N.J. 492 (2006). Temporary disability benefits are payable during the period of disability, not to exceed 400 weeks, N.J.S.A. 34:15-12(a), from the day the employee is first unable to work because of the injury until the employee "is able to resume work and continue permanently thereat[.]" N.J.S.A. 34:15-38; see also Cunningham, supra, 386 N.J. Super. at 427. "Actual absence from work is a prerequisite to a temporary disability award." Cunningham, supra, 386 N.J. Super. at 428.

The receipt of such benefits, however, is keyed to the loss of wages occasioned by the work-related injury. See Young v. W. Elec. Co., 96 N.J. 220, 226 (1984) (noting temporary disability is paid in lieu of lost wages); Ort, supra, 47 N.J. at 208 ("[T]emporary disability represents a partial substitute for loss of current wages."); Gorski v. Town of Kearny, 236 N.J. Super. 213, 215 (App. Div. 1989) ("Temporary disability benefits are paid in lieu of salary."); Elec. Assocs., Inc. v. Heisinger, 111 N.J. Super. 15, 20 (App. Div.) (finding that an injured worker was not entitled to temporary disability payments because "she suffered no current wage loss as a result of an ailment attributable to her occupation") certif. denied, 57 N.J. 139 (1970).

In Cunningham, the petitioner sustained a torn medial meniscus while working as a machine operator. Cunningham, supra, 386 N.J. Super. at 425. A month after injuring his knee, Cunningham was terminated for violating company policy related to leaves of absence. Ibid. He was reinstated, conditioned upon him not having any unauthorized absences for one year, and successfully completed the conditions for his reinstatement. Ibid. Later, he had another unauthorized period of leave from work, but his union negotiated another agreement with his employer that called for him to return to work. He reported to work on February 3, 2005, as scheduled, but requested permission to leave less than one hour later due to child care issues.

Ibid. Permission was denied and Cunningham was told that if he left, he would be terminated. Ibid. Cunningham left work and was terminated. Ibid. He did not make any further attempts to return to work. Ibid. We stated that "the reason for separation from employment, if unrelated to the employment or disability, is not dispositive of the overriding issue--did the employee suffer a current wage loss?" Id. at 429. In other words, the sole inquiry is whether an injured worker has lost income because of the work-related disability. See id. at 433.

A current wage loss need not derive from wages lost from the job on which the injury occurred. See Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 540 (1998). Gioia has the burden of proving not only that he was available and willing to work, but that he would have been working if not for the disability. Here, the claimed temporary disability benefit was replacement for nothing more than the wages of a theoretical job, and there is nothing in the record to suggest that he had any promise or prospect of employment. As in Cunningham, Gioia "left his job (whether characterized as voluntarily or as a termination for cause in violation of a company policy he knew would result in termination), and, without new employment secured, he did so at his peril. His leaving was not related in any way to his disability." Id. at 434.

The JOC found that Gioia could have returned to light-duty work. However, he was terminated for violating his employer's drug policy. If Gioia can prove that he actually lost income on or after November 28, 2007, because of his disability, he is entitled to receive temporary disability benefits to that extent. To allow any more or any less would contravene N.J.S.A. 34:15-38 (temporary disability payable during time employee is "unable to continue at work by reason of the accident"), and the Outland holding. We follow the Court's approach in Outland and remand to the Division of Workers' Compensation to afford Gioia an opportunity to prove actual wage loss.

Reversed and remanded for further proceedings.

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