Appellate Division Affirms Decision of Judge of Compensation Finding That The New Jersey Sports and Exposition Authority Did Not Need To Reconstruct Petitioner’s Wage in Award of One Third of Permanent Partial Disability - NWCDN New Jersey Member
Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters. In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).
Petitioner, Ms. Lawson, had two jobs in 2009: one for the NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart in a full-time position. She broke her femur at work on the part-time job with the NJSEA I 2009 and had metal rods inserted into her leg during surgery. She worked very few hours for NJSEA, so her wage was only $103.36 per week giving rise to a rate of $72.35 per week for permanency purposes. Because petitioner had a significant injury consisting of a femur fracture and other leg injuries, the parties ultimately agreed that the disability was thirty three and one third percent. Where the parties disagreed was on whether to do wage reconstruction. That issue was the one that was tried fully.
Without wage reconstruction, the one third award amounted to $14,469. With wage reconstruction, the one third award would have amounted to $72,300 because the $14 per hour wage would be reconstructed on a 40-hour per week basis to $560 with a rate of $392. So reconstruction in this case really mattered: $14,469 versus $72,200. The difference was $57,531.
Petitioner testified at trial that after her accident on August 14, 2009, she took medical leave from Wal-Mart until April 2010. When she returned to Wal-Mart, she did so with medical restrictions limiting her to part-time work. Petitioner refused the company’s offer of part-time work and was let go. She later reapplied to Wal-Mart for a full-time position but the company did not rehire her. After she recovered from her surgery, she was able to return to her part-time job as a stadium usher for the NJSEA.
Petitioner collected unemployment from July 2010 to December 2012, certifying that she was ready, willing and able to work. At the time petitioner testified at trial, she said that she could not do stocking of shelves and so was unable to get a job in other large stores. She also testified that she felt she could work full time in a store but only if she did not have to climb ladders. At the time of her testimony, she was working part-time at a supermarket. She admitted to doing a lot of physical work at home, mowing the lawn, cutting wood with a small electric chainsaw, walking a mile and swimming.
Two experts testified in the case on the issue of reconstruction of wages. Dr. Tiger for petitioner said that petitioner could not do full-time work as a consequence of her injury at NJSEA. However, he did not know that she was climbing up and down stairs as a stadium usher, and he did not know that she was swimming, walking a mile and doing some strenuous home activities.
Dr. Mercurio for respondent testified that petitioner had minimal residual disability from her injuries. He felt that she could work full duty without restrictions. He noted that petitioner had a second surgery in 2014 to remove hardware from her leg and observed that petitioner told physicians that she was “better than she was before.” When Dr. Tiger examined, the second surgery had not yet taken place, so he really could not comment on this issue.
The Judge of Compensation found Dr. Mercurio to be the more credible medical witness. The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of. The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.” This conclusion was based in part on the many home activities petitioner engaged in. The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”
Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed. The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.” The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.
This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work. Physical capacity of the worker both in and outside work must be considered. The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e?mail at firstname.lastname@example.org.
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