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Parascandolo v. Department of Labor, Bd. of Review

Superior Court of New Jersey, Appellate Division

May 22, 2014


Submitted October 16, 2013.

Approved for Publication May 22, 2014.

Page 670

On appeal from the Board of Review, Department of Labor, Docket No. 333,049.

Pezzano Mickey & Bornstein LLP, attorneys for appellant ( Lisa Pezzano Mickey, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review ( Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Berry, Sahradnik, Kotzas & Benson, attorneys for respondent Brick Township Board of Education, join in the brief of respondent Board of Review.

Respondent Vinny's King Pizza has not filed a brief.



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[435 N.J.Super. 620] ESPINOSA, J.A.D.

In enacting the Temporary Disability Benefits Law (TDBL), N.J.S.A. 43:21-25 to -66, the Legislature sought to provide relief to workers who suffered involuntary unemployment and loss of wages due to illness or injury that was not covered by the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128.5. The TDBL was to " fill the gap" in existing employee welfare legislation and expressly provided that its benefits should not duplicate benefits provided under the WCA. See N.J.S.A. 43:21-26, -30. Because the TDBL was generally applied to situations involving one employer, the legal issue that typically arose thereafter involved an " either/or" analysis; the injury was either covered by the WCA or the TDBL but not both.

We first considered the interplay of the two statutes in a case where the worker had two employers in In re Scott, 321 N.J.Super. 60, 728 A.2d 260 (App.Div.1999), aff'd, 162 N.J. 571, 745 A.2d 539 (2000). The worker was injured at his part-time job and we determined that the receipt of temporary workers compensation benefits (TWCB) from that employer did not bar the receipt of temporary disability benefits (TDB) for the loss of wages from his primary employer. Id. at 65-66, 728 A.2d 260. This appeal requires us to examine the interplay of the two statutes once again to determine their application when only one of two employers is a " covered employer" under the TDBL and whether the right to subrogation applies under such circumstances even though there was no duplication of benefits.

Appellant Gina Parascandolo held two part-time jobs when she was injured in the course of her employment at one of the jobs. [435 N.J.Super. 621] She received TWCB from the

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employer where she was injured, a public employer that did not participate in the State Disability Benefits Fund, and TDB through her other employment. Although she received both forms of benefits, she did not receive duplicate benefits. She appeals from a final agency decision of the Department of Labor, Board of Review (the Board), that held appellant was obligated to reimburse the Division of Temporary Disability Insurance (the Division) because she received both TDB and TWCB for the same injury. For the reasons that follow, we reverse.


We begin by briefly reviewing the history of employee welfare legislation, which began with the enactment of the WCA. Originally enacted in 1911, the WCA represented a " 'historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment.'" Van Dunk v. Reckson Assoc. Realty Corp., 210 N.J. 449, 458-59, 45 A.3d 965 (2012) (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174, 501 A.2d 505 (1985)). Compensation under the WCA is limited to injuries suffered " in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer." N.J.S.A. 34:15-36; see Hersh v. Cnty. of Morris, 217 N.J. 236, 249-50, 86 A.3d 140 (2014).

The next development came in 1936 with the passage of the Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -24.30. See Butler v. Bakelite Co., 32 N.J. 154, 160, 160 A.2d 36 (1960). From the outset, the UCL was recognized as remedial legislation, its " primary objective" being " to provide a cushion for the workers of New Jersey 'against the shocks and rigors' of unemployment." Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J.Super. 309, 318, 937 A.2d 318 (App.Div.2007) (internal citation omitted), certif. denied, 195 N.J. 420, 949 A.2d 849 (2008). [435 N.J.Super. 622] Accordingly, the provisions of the UCL are liberally construed, even permitting a statutory employer-employee relationship, the " center of the UCL," to be found when the facts might not satisfy common law principles. Id. at 318-19, 937 A.2d 318.

However, the worker who suffered involuntary unemployment as the result of a disabling accident or illness that did not arise in the course of employment received no relief from these statutes. See Butler, supra, 32 N.J. at 160-62, 160 A.2d 36; Janovsky v. Am. Motorists Ins. Co., 11 N.J. 1, 4, 93 A.2d 1 (1952). In enacting the TDBL in 1948, the Legislature recognized the need

to fill the gap in existing provisions for protection against the loss of earnings caused by involuntary unemployment, by extending such protection to meet the hazard of earnings loss due to inability to work caused by nonoccupational sickness, accidents, or other disabilities of workers.
[ N.J.S.A. 43:21-26 (emphasis added).]

The Legislature declared that the TDBL was remedial legislation to be liberally construed. Ibid. The Legislature also clearly expressed its intent that, while the TDBL was to fill a gap in the protections afforded by the WCA and the UCL, it would not duplicate the benefits provided by those statutes. The TDBL thus allows " the payment of reasonable cash benefits to eligible individuals who are subject to accident or illness which is not compensable under the workers' compensation law ." Ibid. (emphasis added). With certain specified exceptions, N.J.S.A. 43:21-30(b)

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explicitly bars the duplication of benefits paid under the WCA:

No benefits shall be required or paid under this act for any period with respect to which benefits . . . are paid or payable on account of the disability of the covered individual under any workers' compensation law . . . .

Thereafter, the legal issue that was typically raised was which of the statutes applied to provide relief to the worker who suffered a loss of wages due to involuntary unemployment. See, e.g., Janovsky, supra, 11 N.J. at 3-5, 93 A.2d 1; see also Butler, supra, 32 N.J. at 157, 160 A.2d 36. As the Court explained,

Where an employee is disabled by accident or illness he will generally be entitled to benefits under either the compensation law or the benefits law, but not under both . If liability under the compensation law is clear, payment will be made [435 N.J.Super. 623] thereunder, and if absence of liability under that statute is clear, payment will be made under the benefits law.
[ Janovsky, supra, 11 N.J. at 5, 93 A.2d 1 (emphasis added).]

A " twilight zone" was recognized for cases when " liability under the compensation law [is] doubtful and dependent on the outcome of contested proceedings." Ibid. In such cases, the TDBL provides benefits " to help tide the worker over during his inability to work . . . with full reimbursement from any award subsequently rendered in the compensation proceeding." Ibid.; N.J.S.A. 43:21-30(b)(1), (2).

The application of this nonduplication requirement is straightforward in cases where the employee holds one job. See Sperling v. Bd. of Review, 301 N.J.Super. 1, 5, 693 A.2d 901 (App.Div.1997), aff'd, 156 N.J. 466, 720 A.2d 607 (1998). When an employee has only one job and suffers an injury " arising out of and in the course of his employment," Janovsky, supra, 11 N.J. at 4, 93 A.2d 1, it is clear the injury is compensable under the WCA and, therefore, any TDB for the same injury would duplicate those benefits. It was within that factual context that we held in Sperling that an individual who obtains workers' compensation benefits by settlement " may not obtain temporary disability benefits for the same injury ." Sperling, supra, 301 N.J.Super. at 5, 693 A.2d 901 (emphasis added). However, the interplay between the two statutes requires closer scrutiny when, as here, the employee has more than one job.

In 1999, we decided Scott, which, we recognized, was unlike cases such as Janovsky and Sperling that dealt " with the traditional situation of a worker who has one job and is injured in circumstances not covered, or clearly covered, by workers' compensation." Scott, supra, 321 N.J.Super. at 65, 728 A.2d 260. In Scott, the employee held both full-time employment, with Konica Business Machines, and a part-time job, with Holiday Bowl. He was injured " in the course of his employment" at his part-time job. Id. at 62-63, 728 A.2d 260. He obtained workers' compensation for the injury calculated solely on his earnings from Holiday Bowl. [435 N.J.Super. 624] Ibid. As a result, the compensation benefits he received were less than he would have received if the accident occurred at Konica. Id. at 64, 728 A.2d 260. His application for TDB based on his inability to work at his full-time employment was denied by a private plan hearing officer. Id. at 63, 728 A.2d 260. On appeal, Konica argued that no TDB should be paid because " such benefits are ...

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