On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition Nos. 2004-14021 and 2006-34318.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Nugent.
The Trenton Board of Education ("BOE" or "the employer") appeals from two January 25, 2011 orders issued by a judge of compensation requiring BOE to pay a twenty-five percent statutory penalty to petitioner Lori Ferguson. The orders in question resulted from BOE's unilateral decision -- made without the approval of the compensation judge -- to refuse to issue any further payments to Ferguson of the previously-ordered workers' compensation temporary disability payments. In light of the remedial nature of the statutory scheme for payment of workers' compensation benefits, and in light of the wholly unwarranted and unreasonable nature of the employer's actions, we affirm the penalty orders under review.
Ferguson was hired as a physical education teacher by BOE on November 2, 1998. Although her full-time teaching position consisted of a ten-month school year, she was approved by BOE as a summer school teacher in 2000, 2002, and 2003, and was paid supplemental income for July and August during those years.
On January 7, 2004, Ferguson sustained the first of the two work-related injuries that are the subject of this appeal. While attempting to set up a scoreboard for her students, Ferguson was injured when a television fell off a stand and struck her in the head and neck, causing an injury to her cervical spine. Ferguson filed claim petition 2004-14021 on May 10, 2004 with the Division of Workers' Compensation, alleging injuries to her head, neck, and shoulder, as well as neuropsychiatric claims. She underwent surgery on her cervical spine in November 2004.
Ferguson returned to work briefly in May 2005, but her physician recommended a second surgical procedure that required her to leave work. In May 2006, after undergoing that second surgery, Ferguson was medically cleared to return to her employment. Because Ferguson was on leave in April 2006, when hiring was conducted for summer employment, BOE did not pay Ferguson disability benefits for July and August 2006. Nor did BOE pay her for summer work in 2005, because, at that time, she was medically unable to perform such duties.
On December 8, 2006, Judge of Compensation Emille Cox issued a consent order awarding Ferguson forty percent permanent partial total disability on the May 2004 claim, "for the residuals of discogenic disease of the cervical spine with bilateral brachial neuralgia status post two surgical interventions[.]" Pursuant to the order approving settlement, BOE agreed to pay Ferguson 1) temporary disability benefits of $467 per week for nearly eighteen weeks, for a total of $8,272.44; 2) permanent disability benefits of $347 per week for 240 weeks less $19,215, for a total of $64,065; 3) benefits for summer wages for 2004 and 2005; and 4) all authorized medical bills.
Unfortunately, on October 27, 2006, Ferguson suffered a second work-related injury when a student jumped on her and re-injured her neck, causing Ferguson to file claim petition 2006-34318 on December 6, 2006. Following several months of treatment, Ferguson was cleared to return to work in May 2007; however, because Ferguson was experiencing cognitive difficulties, her physician kept her out of work from May 22, 2007 until September 2007. She did not receive disability payments for the summer of 2007.
Ferguson returned to work in September 2007, and worked through December 12, 2007, when her authorized physician again recommended that she go out on medical leave. BOE did not pay Ferguson temporary disability benefits from December 12, 2007 through May 16, 2008, nor did BOE provide her with summer pay for July and August 2008.
On May 23, 2008, Ferguson filed an application for review or modification of the formal award, re-opening the first claim. The application alleged that her "medical condition ha[d] materially worsened since the entry of the last award. Petitioner is in need of medical care and treatment." Thereafter, on May 27, 2008, Ferguson filed a motion for medical and temporary disability benefits from May 2007 forward, pursuant to her second workers' compensation claim.
On September 19, 2008, Ferguson was examined by Virginia Gaskel, D.O., of BOE's corporate health department. Gaskel opined that Ferguson's injuries were so severe, she might never be able to return to her employment as a physical education teacher. Gaskel wrote:
Within a reasonable degree of medical certainty I do not believe the patient is capable of returning to work at this time. I will attempt to speak with her treating psychologist. . . . She has tried numerous times to return to work and has been unsuccessful. She states physically she does feel improved, but mentally she still has issues. I will continue to review her medical records and will attempt to contact her treating physicians to garner a treatment plan. In light of my discussion with the patient and review of records provided, I am unsure that the patient will ever be able to return to her duties as [a] physical education teacher.
After receiving Gaskel's report, BOE authorized further medical treatment for Ferguson, and found her unable to return to work.
On April 17, 2009, Judge of Compensation Cox granted Ferguson's motion for temporary benefits on the second claim, which had been filed in December 2006, ordering BOE to "continue to pay temporary disability subject to law and medical evidence." On July 31, 2009, he issued a second order, which continued BOE's obligation to pay Ferguson temporary disability benefits.
On October 23, 2009, Judge Cox entered two orders, the first denying without prejudice BOE's motion to alter the April 17 and July 31, 2009 orders, the second granting Ferguson's motion to enforce the July 31, 2009 court order, and requiring BOE to pay for her medical evaluation and treatment at Cooper University Hospital.
Five months later, a federal administrative law judge approved Ferguson's application for Social Security Disability (SSD), finding that Ferguson had been disabled since ...