Opinion
DOCKET NO. A-3589-13T4
11-12-2015
DOMENICK CATRAMBONE, Petitioner-Respondent, v. BALLY'S PARK PLACE, Respondent-Appellant. SECOND INJURY FUND, Intervenor-Respondent.
Anthony C. Famulari argued the cause for appellant (Biancamano & DiStefano, P.C., attorneys; Joseph V. Biancamano and James E. Santomauro, of counsel and on the briefs). Frank A. Petro argued the cause for respondent (Petro Cohen Petro Matarazzo, P.C., attorneys; Mr. Petro and Steven S. Lubcher, on the brief). Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kline, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Simonelli. On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2007-16972. Anthony C. Famulari argued the cause for appellant (Biancamano & DiStefano, P.C., attorneys; Joseph V. Biancamano and James E. Santomauro, of counsel and on the briefs). Frank A. Petro argued the cause for respondent (Petro Cohen Petro Matarazzo, P.C., attorneys; Mr. Petro and Steven S. Lubcher, on the brief). Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kline, on the brief). PER CURIAM
Appellant Bally's Park Place (Bally's) appeals from the March 19, 2014 judgment of the Division of Workers' Compensation, which awarded respondent Domenick Catrambone an increase in his permanent partial total disability for a lower back injury. For the following reasons, we affirm.
I.
The First Claim Petition and the First
Application to Modify the Compensation Award
From March 1995 to February 2009, Catrambone was employed by Bally's as a security supervisor. On March 18, 2006, he sustained a work-related lower back injury. On June 25, 2007, he filed a claim petition, seeking compensation for his injury (the first claim petition).
The first claim petition was settled. In a May 15, 2008 Order Approving Settlement, Catrambone was awarded 27.5% of permanent partial total disability for his lower back injury (the May 2008 award). Bally's received a credit of 7.5% partial total disability for Catrambone's pre-existing conditions. Accordingly, Catrambone was entitled to permanent partial total disability benefits for 126.893 weeks, from March 18, 2006 to August 21, 2008, at the rate of $217.27 per week, for a total of $27,570. On March 24, 2009, Catrambone filed an application to modify the May 2008 award based on a material worsening of his compensable lower back condition.
The Second Claim Petition and the
Petition Filed with the Second Injury Fund
On June 14, 2008, Catrambone suffered a work-related injury to his neck, left shoulder, and left wrist. On March 24, 2009, he filed a claim petition, seeking compensation for his injuries (the second claim petition).
Thereafter, on March 16, 2010, Catrambone filed a petition with intervenor Second Injury Fund (Fund) in connection with his left shoulder injury (the SIJ petition). Catrambone alleged he was eligible for benefits from the Fund because he was "totally and permanently disabled as the result of a combination of [his] pre-existing physical . . . conditions and [his] last compensable injury" to his left shoulder. The SIJ petition was subsequently consolidated with Catrambone's application to modify the May 2008 award.
Settlement of the Application
to Modify and the SIJ Petition
The application to modify the May 2008 award was settled. A November 29, 2010 order approving settlement increased Catrambone's permanent partial total disability from 27.5% to 30% for the increased disability to his lower back. Bally's received a credit of 27.5%. Accordingly, Catrambone was entitled to permanent partial disability benefits for 143.265 weeks, from March 18, 2006 to December 12, 2008, at the rate of $225.40 per week, for a gross of $32,292, minus $27,570 from the May 2008 award, for a net award of $4722.
The SIJ petition was also settled. A November 29, 2010 order for total disability awarded Catrambone 100% total and permanent disability for his left shoulder (the SIJ order). The order deemed Catrambone totally and permanently disabled as of February 1, 2009, "due to the combined effects of [his] previous disabilities and the last [left shoulder] compensable accident[.]" The order required Bally's to pay 33 1/3% of the total award as follows: $634.10 per week for 150 weeks for a total of $95,115, with payments ceasing on December 17, 2011. The order required the Fund to pay 66 2/3% of the total award as follows: $634.10 per week for 300 weeks commencing on December 18, 2011 and ending on September 16, 2017. Under pre-existing compensable disabilities, the order listed Catrambone's 30% permanent partial total disability award for his lower back.
Catrambone, Bally's and the Fund were present at the November 29, 2010 hearing before the judge of compensation to approve the two settlements. Neither Bally's nor the Fund objected when the judge mentioned, and Catrambone acknowledged, his right to reopen the first claim petition within two years if his lower back condition worsened.
The Second Application to Modify
On November 14, 2011, Catrambone timely filed an application to modify the November 29, 2010 award based on a material worsening of his compensable lower back condition. In opposition, Bally's argued that Catrambone could not receive an increase in disability because the SIJ order awarded him 100% total permanent disability and his lower back injury was mentioned and considered in determining he was totally and permanently disabled.
Bally's also argued that Catrambone had no increase in his disability. In this appeal, Bally's does not challenge the judge of compensation's finding that Catrambone's lower back disability had increased to 35% of permanent partial disability. Therefore, the issue is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).
After considering Catrambone's medical records, the testimony presented, and the expert reports, the judge of compensation concluded that Catrambone's compensable lower back disability had increased to 35% of permanent partial total disability. The judge determined that neither N.J.S.A. 34:15-27 nor N.J.S.A. 34:15-95 barred Catrambone from receiving an increase in disability benefits for a claim relating to his lower back based on a finding that he was totally and permanently disabled under a different claim for his shoulder injury.
N.J.S.A. 34:15-27 provides as follows, in pertinent part:
An agreement for compensation may be modified at any time by a subsequent agreement. Upon the application of any party, a formal award, determination, judgment, or order approving settlement may be reviewed within two years from the date when the injured person last received a payment on the ground that the incapacity of the injured employee has subsequently increased.
N.J.S.A. 34:15-95 provides as follows, in pertinent part:
The sums collected under [N.J.S.A. 34:15-94] shall constitute a fund, to be known as the Second Injury Fund, out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of [N.J.S.A. 34:15-12(b)] shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause[.]
The judge found that Mayti v. Singer Manufacturing. Co., 76 N.J. Super. 379 (Law. Div. 1962), aff'd, 79 N.J. Super. 556 (App. Div. 1963), and Taylor v. Engelhard Industries, 230 N.J. Super. 245 (App. Div. 1989), on which Bally's relied, did not apply because those cases involved attempts to modify an award for total disability. The judge explained that
[c]learly, under one event or exposure, a person cannot ever be greater than 100 percent disabled. However, there are many examples as to a person's receiving aggregate awards from multiple claims that would exceed 100 percent if added together. We do not add them together, nor are we required to by law. The [c]ourt, in Taylor, states that a new accident or exposure is necessary to make a further and greater finding of disability. That is what we have here.
To extinguish [Catrambone's] rights to review or modify an award under which he was not adjudged as permanently and totally disabled would be contrary to both the strict construction and the spirit of our law.
Finally, the judge noted that he was "mindful of the notions of unjust enrichment" and that "it would be inappropriate for . . . Catrambone to receive more money than he might otherwise be entitled to under law." However, the judge found that in Paul v. Baltimore Upholstering Co., 66 N.J. 111 (1974), our Supreme Court provided a tool for calculating any offsets which might exist when a petitioner has separate claims for benefits and one of them is for permanent and total disability, known as a "Paul calculation."
In a March 19, 2014 order, the judge increased Catrambone's permanent partial total disability from 30% to 35% for the increased disability to his lower back, and awarded Bally's a credit of 30% for his permanent partial total disability and 7.5% for his permanent partial total for pre-existing conditions. Accordingly, Catrambone was entitled to permanent disability benefits for 184.29 weeks at a rate of $322 per week, for a total of $59,340, which was an increase of $27,048 from the November 29, 2010 award.
The order also contained the following "Paul calculation:"
There was no lost time in connection with the original accident of March 18, 2006, therefore, permanent partial disability benefits [for the lower back] run from March 18, 2006 through September 27, 2009. However, [Catrambone] received an award of permanent and total disability on November [29], 2010 in connection with [the left shoulder] with a date of totality of February 1, 2009. As such, the time period from March 18, 2006 through January 31, 2009 (the day before the date of totality) represents a period of 150 & 1/7 weeks [totaling] new accrued compensation of $16,054.00 [$322.00 per week less previous benefits paid at $225.40 per week]. Permanency benefits beginning February 1, 2009 through September 27, 2009 equal 34 & 1/7 weeks at the rate of $322 .00 per week [totaling] $10,994.00 which is to be credited against the permanent total disability award, for which [Bally's] shall reimburse the . . . Fund which has been making payments on the [t]otal [d]isability [a]ward since December 18, 2011.[]
[Catrambone] retains the right to reopen this claim within two years from the date when the last payment is issued in connection with this [a]ward.
II.
On appeal, Bally's reiterates that Catrambone could not receive an increase in disability because he was awarded 100% total permanent disability and his pre-existing compensable lower back injury was mentioned and considered in determining he was totally and permanently disabled. The Fund joins in this argument.
Bally's also argues that the doctrines of res judicata and collateral estoppel barred the second modification application. Alternatively, Bally's argues that Catrambone was only entitled to an increase of $16,054 and there should be no reimbursement to the Fund.
The Fund agrees with the judge's "Paul calculation." On appeal, the Fund asks this court to require that it be joined as a party in any future modification cases involving a subsequent total disability award with Fund liability. However, as the Fund's counsel conceded at oral argument, this requires an impermissible advisory opinion from this court. G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009). --------
Our review of workers' compensation cases is limited. Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014). We must determine
whether the findings made could reasonably have been reached on sufficient credible
evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted).]
We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the factual findings and legal determinations made by the judge of compensation "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) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). We will "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions" only if the judge of compensation "went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (internal quotation marks omitted), certif. denied, 122 N.J. 372 (1990). However, we afford no deference to a judge of compensation's interpretation of the law and review legal questions de novo. Renner v. AT&T, 218 N.J. 435, 448 (2014). Because this matter involved the judge's interpretation of the law, our review is de novo.
An injured employee in a workers' compensation case may apply for modification of an order approving settlement within two years from the date when the employee last received a payment on the ground that the incapacity of the employee had subsequently increased. N.J.S.A. 34:15-27. Thus, when the petitioner has been awarded partial disability benefits, he or she may subsequently apply to have the award reopened and modified if the compensable condition worsened. See, e.g., Milos v. Exxon Co., USA, 281 N.J. Super. 194, 197 (App. Div. 1995), aff'd o.b., 143 N.J. 333 (1996).
However, when a petitioner has received an award for total disability benefits, he may not apply to have the award increased on the ground that the compensable condition has worsened. See Taylor, supra, 230 N.J. Super. at 251. As we explained in Taylor,
[A]n award of compensation for 100% total permanent disability should preclude any further award for any increase in the effects of the same injury. This is not because the effects of the injury may not increase. They may and frequently do increase and the condition of the employee may grow worse. But further compensation
may not be allowed because the employee has received all that the law allows.
[Ibid. (quoting Mayti, supra, 76 N.J. Super. at 382).]
In Taylor, the petitioner was determined to be totally and permanently disabled from several causes, including a pulmonary condition. Id. at 247. After his death, his widow filed an application to increase his disability benefits, alleging that his pulmonary condition had worsened between the time of the total disability award and the time of his death. Id. at 247-48. We held that "there can be no further increase in a compensable disability after an adjudication of 100 percent total permanent disability unless the worker returns to work and is reinjured." Id. at 250-51.
In reaching this conclusion, we expressly adopted the rationale in Mayti that once a petitioner is awarded the maximum statutory compensation for a compensable injury, he may not apply for increased benefits based on an increase in the effects of the same injury; however, if a petitioner's claim for increased benefits is based on a different injury, then a prior determination of total and partial disability would not preclude an increased award. Id. at 251 (citing Mayti, supra, 76 N.J. Super. at 382-83).
In this case, Catrambone was awarded partial disability for his lower back under the first claim petition, and total disability for his left shoulder under the separate second claim petition. Although he may have received the maximum statutory amount for his left shoulder, he was not determined totally and permanently disabled for his lower back injury, and thus did not receive the maximum statutory amount with respect to his lower back. Accordingly, he was entitled to apply for and receive an increase in the partial disability award relating to his lower back, so long as he did so within two years from the date when he last received a payment and proved an increased disability. N.J.S.A. 34:15-27. Bally's cites no authority that barred Catrambone from disability benefits for multiple disabling conditions. The increased award for Catrambone's lower back, therefore, did not create a windfall or result in a double recovery.
We have considered Bally's remaining contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.
The doctrines of res judicata and collateral estoppel may form a valid defense for a total disability award. Taylor, supra, 230 N.J. Super. at 252-53. However, these doctrines do not apply to a petitioner, such as Catrambone, who timely applied to reopen and modify a partial disability award under N.J.S.A. 34:15-27. Milos, supra, 281 N.J. Super. at 198.
The Fund was entitled to a reimbursement as set forth in the March 19, 2014 order. Catrambone was determined to be totally and permanently disabled as of February 1, 2009 as the result of his shoulder injury. The November 29, 2010 order for total disability provided that 66 2/3% of total disability was attributable to Catrambone's pre-existing conditions, and therefore payable by the Fund. When the partial disability award for Catrambone's lower back was increased, the Fund's payments under that award extended beyond February 1, 2009 by 34 1/7 weeks. Thus, the payments attributable to the partial disability award for Catrambone's lower back during the overlapping period constituted a compensable pre-existing disability for which the Fund was entitled to a credit. See Di Bernard v. Great Atl. & Pac. Tea Co., 303 N.J. Super. 280, 285-86 (App. Div. 1997) (holding that the Fund is liable for the percentage of the total disability award that is attributable to the petitioner's pre-existing disabilities), certif. denied, 152 N.J. 365 (1998); Paul, supra, 66 N.J. at 128 (holding that when a pre-existing condition is compensable, the Fund is entitled to a credit against its obligations for any award made to the employee for a prior compensable disability).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION