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Caitlin Wilson was injured on September 8, 2011 when she dropped a heavy frame on her foot while in the employment of respondent Studio I, Inc. She received $420 per week from September 14, 2011 to October 24, 2011 in temporary disability benefits. Her doctor advised that she could work light duty at the end of this period, but she did not return to work at this time. She did return part-time from November 15 - 26, 2011. She claims the respondent then told her not to return to work until she could work full-time. Petitioner was paid $339.43 in temporary disability benefits for the period she worked part-time.
Respondent claimed that petitioner was authorized to return to work with restrictions on October 14, 2011. It tried to accommodate the restrictions which actually increased over the next two months, but petitioner either did not arrive at work, arrived late or did not perform her job even with accommodations. Respondent further claimed that petitioner stopped coming to work entirely without producing any medical note. She resigned from the company on February 9, 2012 because she was moving. It was undisputed that petitioner returned to work on February 10, 2012.
On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits. She argued that her wage was miscalculated and that she was entitled to temporary disability benefits from October 25, 2011 to November 14, 2011. She maintained that her temporary disability benefits should have continued until February 3, 2012. She also argued that when she filed the motion in January, 2012, she was not working at that time and was, in her view, entitled to temporary disability benefits. Therefore, in her view, it did not matter that she later returned to work on February 10, 2012. She argued that she was entitled to a decision on her motion at that time.
The Judge of Compensation, Honorable Philip A. Tornetta, denied the motion because the claim concerned past periods of temporary disability and was contested by respondent. The Judge relied onN.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.
The Appellate Division reviewed the appeal and affirmed Judge Tornetta’s decision. It said, “in this matter an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits. Thus, this appeal is interlocutory.” It relied on 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.”
The case can be found at Wilson v. Studio I, Inc., d/b/a/ Venture Photography, A-0117-12T4 (App. Div. August 8, 2013). It is useful case for practitioners in clarifying whether a motion for medical and temporary disability benefits should be heard early in the case or held to the end of the case when all issues will be decided.