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When a petitioner files a motion for medical and temporary disability benefits and the only issue is which carrier or employer is responsible, the Judge of Compensation can order benefits paid by one of the parties pending the outcome of litigation. The logic behind this rule is that it is unfair to delay benefits to an injured claimant while two potentially responsible employers or carriers fight out which of the two should be legally responsible. But there are limits to this practical rule, as noted in Calix v. A2Z Universal Landscaping and Utica National Insurance Group No. A-3978-15T2 (App. Div. September 7, 2017).
The case began with a serious injury to Mr. Calix, who was not sure who his employer was. He filed motions against both RNR Technologies, Inc. and A2Z. RNR was not insured and never answered the claim petition nor responded to the motion. Utica, as carrier for A2Z, began to make payments but stopped when it determined that there was no evidence petitioner was employed by A2Z.
Mr. Calix testified that he began working at 3200 Bordentown Avenue in Parlin, N.J. a few months prior to the accident and was paid cash. He never received any documentation identifying his employer. The petitioner’s certification asserted that the address above was that of RNR. Petitioner testified that he never heard the name of A2Z and never saw any signs bearing the name of A2Z. He said he was hired by Roger West and an individual named Steve. That was the extent of his knowledge.
The Judge of Compensation directed A2Z to pay Calix temporary disability benefits retroactively to the date of accident on the basis of an administrative court rule under N.J.A.C. 12:235-3.2 (h). That is the rule which states that the Judge can order one of the carriers or employers to pay pending litigation where the only issue is which employer or carrier is liable. A2Z appealed the court order and contended that this rule did not apply where the critical issue in the case is employment by one of the companies.
The Appellate Division reversed the order of the Judge of Compensation. It said, “There is no evidence supporting the judge’s implicit finding A2Z was Calix’s employer and therefore no basis upon which the judge could properly award temporary benefits under N.J.S.A. 34:15-15.” The Court added that this administrative rule “presupposes that a respondent ordered to pay temporary benefits is the petitioner’s employer in the first instance.”
The case is instructive because in today’s workplace it is increasingly common that employees do not always know the identity of their employer. In this case, petitioner only knew he worked at the address of RNR, which was uninsured and did not even respond to pleadings in the case. There was no evidence at trial that A2Z was in fact petitioner’s employer; hence, the logic of the administrative rule did not apply. A2Z was entitled to try the issue of employment, and the burden was on petitioner to prove employment.
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.