NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2013
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. No. 1998-22388.
Alan L. Harwick argued the cause for appellant (Herold Law, P.A., attorneys; Mr. Harwick, of counsel and on the briefs; Debra R. Rydarowski, on the briefs).
David Hoffman argued the cause for respondent (Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser, P.A., attorneys; Mr. Hoffman, on the brief).
Before Judges Alvarez, Waugh and St. John.
Respondent Elizabeth Board of Education (Board) appeals from the August 29, 2012 order of the workers' compensation judge denying the Board's motion for reimbursement from Adam Weiner for overpayment of workers' compensation. We reverse and remand to the workers' compensation judge for further proceedings.
The record discloses the following facts and procedural history leading to the administrative determination under review.
On October 18, 2000, Weiner received an award of total disability which entitled him to payments of $480 per week for 450 weeks. The award was subsequently amended on January 9, 2001, to $340.98 per week to reflect the social security offset rate. On April 1, 2002, Weiner qualified for and began receiving ordinary disability pension benefits in addition to his workers' compensation benefits. Weiner did not disclose his receipt of ordinary disability pension benefits to the Board. On April 29, 2010, the Board requested authorization for access to Weiner's pension records to determine if an offset was applicable. When the records were provided, the Board for the first time became aware that Weiner had been receiving ordinary disability pension benefits. On August 10, 2011, Weiner and the Board entered into a consent agreement reducing Weiner's disability rate to $222.39 prospectively.
The Board then sought reimbursement of the excess disability benefits Weiner received from April 1, 2002, through August 10, 2011. A hearing was held before a workers' compensation judge on August 1, 2012. In an August 29, 2012 order the judge denied the Board's motion for reimbursement of overpayment of workers' compensation. It is from that decision that the Board appeals.
Our standard of review is well-settled. We are bound by the compensation judge's fact-findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. "Deference must be accorded the factual findings and legal determinations made by the compensation judge 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) (internal quotation marks and citations omitted). Petitioner bears the burden to establish the compensability of the claim being made. Id. at 279; Perez v. Monmouth Cable Vision, 278 N.J.Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). However, it is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of ...