August 8, 2013
CAITLIN WILSON, Petitioner-Appellant,
STUDIO I, INC., d/b/a VENTURE PHOTOGRAPHY, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-29288.
David Tykulsker & Associates, attorney for appellant (David Tykulsker, of counsel and on the brief).
Law Office of Timothy R. Holman, attorney for respondent (Edward S. Tucker, on the brief).
Before Judges Espinosa and Hoffman.
Petitioner Caitlin Wilson appeals from a determination by the Division of Workers Compensation denying her motion for medical and temporary disability benefits. We dismiss the appeal as interlocutory.
We briefly address the relevant facts. On September 8, 2011, petitioner dropped a heavy frame on her foot while working for respondent Studio 1, Inc. From September 14 to October 24, petitioner received $420 per week in temporary total disability benefits based on her purported wage of $600 per week. At the end of this period, petitioner's doctor advised her that she could work on light duty, but she did not return to work at that time. Petitioner returned to work part-time from November 15 until November 26, when she claims that respondent told her not to return to work until she could work full-time. Petitioner received $339.43 in disability benefits for the period that she worked part-time. Petitioner filed a claim petition on October 31, 2011. Petitioner's doctor cleared her for full-time work on February 3, 2012.
Respondent claims that petitioner was cleared to return to work with restrictions on October 24, 2011, with additional clarifications from petitioner's doctor on November 8, 2011 and December 27, 2011. Respondent claims that while it accommodated these increasing restrictions, the petitioner either did not arrive at work, arrived late or did not perform her job, even with accommodations. Respondent further claims that petitioner eventually stopped coming to work entirely, without producing any medical note or report stating that she was totally disabled. On February 9, 2012, petitioner advised respondent that she was resigning because she was moving.
On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits. Petitioner argued that her benefits had been calculated on an incorrect wage figure and that that she was entitled to disability benefits from October 25 to November 14, 2011. She further claimed she should have received disability benefits until February 3, 2012.
On February 10, 2012, the judge denied petitioner's motion because it concerned past periods of disability and was contested. Petitioner moved for reconsideration, arguing that, at the time she filed her original motion, she was entitled to temporary benefits, but by the time the motion was heard on February 10, 2012, she had returned to work. Petitioner also argued that the trial court's interpretation of N.J.A.C. 12:235-3.2(a) is contrary to a sensible interpretation of the rule and undermines the requirement of prompt payment of temporary benefits under N.J.S.A. 34:15-28.1.
In a cogent written opinion, Judge Philip A. Tornetta rejected petitioner's arguments, again confirming that the claimed benefits were for a past period, and specifically noted the applicability of the following portion of N.J.A.C. 12:235-3.2(a):
Motions for temporary disability and/or medical benefits shall evidence that petitioner is currently temporarily totally disabled and/or in need of current medical treatment. Where only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section.
We permit 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. Inc., 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." 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 determination of past 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 interest 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., Inc. v. Chokshi, 403 N.J.Super. 443, 463 (App. Div. 2008). Leave to appeal was not sought nor does petitioner argue such leave should be granted. 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.