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Employers often find New Jersey to be a very frustrating state for workers’ compensation because it is very difficult to close a file for good, unless the parties have grounds for a Section 20 disposition and the proposed Section 20 meets with the approval of the Judge of Compensation. Now those employers will have added basis to complain in light of one of the most astonishing workers’ compensation decisions in decades. InCatrambone v. Bally’s Park Place, A-3589-13T4 (App. Div. November 12, 2015), the New Jersey Appellate Division this month held that a man who received an award for total and permanent disability for his neck with Second Injury Fund contribution can reopen a prior award for his low back.
The case appears to be the first of its kind in New Jersey and is causing waves in the workers’ compensation community because almost every practitioner had been of the impression that total disability means exactly what it says: the most one can get in workers’ compensation court.
It is important to understand the factual context. Mr. Catrambone had two accidents: the first was on March 18, 2006 involving the low back. That led to a settlement on May 15, 2008 for 27.5% of partial total with a small credit for a gross amount of $27,570. The second accident happened on June 14, 2008 and involved mainly the left shoulder. On March 24, 2009, petitioner filed a reopener of the award on the low back and filed a claim petition for the second accident on June 14, 2008 for the left shoulder. Mr. Catrambone alleged that he was totally disabled from a combination of the second accident and the preexisting back problems from the first accident and applied for benefits from the Second Injury Fund.
The parties proposed a simultaneous resolution of both claims on November 29, 2010 with participation of the Second Injury Fund:
1) The low back reopener was settled for 30% credit 27.5%. That award became the basis for Second Injury Fund contribution because the Fund will only contribute if there is proof of previous disabling conditions, whether work-related or non-work-related.
2) The left shoulder claim was settled for 100% permanent total disability with the employer paying 150 weeks and the Second Injury Fund paying 300 weeks and then paying for the rest of petitioner’s life.
All was well until November 14, 2011 when Mr. Catrambone moved to modify the prior low back award. The modification, often called a reopener, was an attempt to increase the prior award of 30% to a higher percentage because Mr. Catrambone argued that his back was worse than it was when he settled on November 29, 2010. Bally’s protested that Mr. Catrambone had already been adjudged totally and permanently disabled and could not therefore get any further increase in his low back award. Bally’s also pointed out that the basis for the contribution of the Second Injury Fund was the prior 30% award, and that award had already been considered as part of the simultaenous settlement with the Second Injury Fund.
The Judge of Compensation disagreed with Bally’s and held that when there are two accidents, the first one being a partial award, the employee could settle for total disability on the second accident and still seek an increase later on the previous award for partial disability from the first accident. The Judge did state that if there is only one accident resulting in total and permanent disability, that award cannot be reopened. The Judge of Compensation entered an order for 35% permanent partial disability with a credit for the prior 30% award, granting petitioner another $27,048. Bally’s appealed this decision.
The Appellate Division noted in its recent decision that when the case actually settled on November 29, 2010, the Judge of Compensation did say to the claimant that he had a right to reopen the partial award and neither attorney said anything at the time. Further, the Appellate Division noted that no prior case directly on point existed precluding Mr. Catrambone from reopening the earlier award on his low back, even though he received total and permanent disability benefits for his left shoulder injury. The Appellate Division held that if a claim for increased benefits is based on a different injury than the one that totally disables the claimant, then the earlier injury award can be reopened. In this case, there was a period of about six months when Mr. Catrambone would be receiving both his additional partial award and total and permanent disability benefits from the Second Injury Fund. The Court ordered Bally’s to repay the Second Injury Fund during that period of double payment. In the end, Bally’s had to pay $27,048, but Mr. Catrambone got $16,054 and the Second Injury Fund got repaid by Bally’s the sum of $10,994.
This case has serious implications for employers who resolve total disability claims with the Second Injury Fund using a prior partial award as a basis for Fund contribution, as well as employers who resolve total disability claims on their own without the Fund when the claimant has prior partial total awards. There appears to be no end to the claimant’s right to reopen the prior award in these situations. While common sense would suggest that total and permanent disability is the end of the line, this case is now the leading one in New Jersey. Based on this decision, Mr. Catrambone can continue to reopen his low back claim so long as he does so within two years from the last payment of compensation to him. The sense of finality that employers had with regard to total and permanent disability claims appears now to be illusory.
It is the understanding of this practitioner that Bally’s has applied for certification from the Supreme Court of New Jersey.
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.