State News : New Jersey

The case of Apperman v. Visiting Nurse Association of Westfield, A-5446-15T3 (App. Div. October 30, 2017) presented an unusual situation where a carrier agreed to pay benefits that exceeded its obligation under the statute.  The case involved the tragic death of Phyllis Apperman who died in a motor vehicle accident in December 2003. The claim was accepted by New Jersey Manufacturers, which agreed to pay dependency benefits to Eric Apperman, the decedent’s husband, and Harold Apperman, a 34-year-old son who was legally incapacitated.

Dependency payments to Eric Apperman ended when he remarried.  In 2007 at the time of settlement, NJM’s counsel stipulated to the following terms in respect to benefits for the incapacitated son:

However, we are here today as he has requested benefits for his son as a dependent, and we do stipulate that the son is incompetent and should receive dependency benefits at the amount of fifty percent of Phyllis Apperman’s wages of $800.  So, he will get $400 per week for 450 weeks and continuing as long as he remains incompetent.  Payments shall date back to March 4, 2005.

The Judge of Compensation entered an order stating that the son’s dependency benefits “shall continue for 450 weeks and shall be paid thereafter pursuant to N.J.S.A. 34:15-12(b) et seq.”  When the 450 week period ended, NJM correctly stopped payments based on the language of the statute which limits payments to 450 weeks for adult children who are incapacitated.  Eric Apperman then appealed the denial of benefits past 450 weeks in part based on the agreement made by NJM counsel at the time of settlement.

The Judge of Compensation heard the motion of petitioner’s counsel to enforce the prior agreement and ruled that NJM’s agreement to pay beyond 450 weeks was a mistake of law.  Therefore, the Judge of Compensation ruled against Apperman, who then filed an appeal.

The Appellate Division first examined the precise language of N.J.S.A. 34:15-13, which states that “payments to such physically deficient persons as are for such reason dependent shall be made during the full compensation period of 450 weeks.”  The statute further states that benefits for dependents under age 18 shall continue until they reach the age of majority.

In this case, the Appellate Division held that payments for those under age 18 can continue for over 450 weeks until the age of majority, but payments for an adult person who is mentally incapacitated are limited to 450 weeks by statute.  The Court further said, “Neither party has cited any authority, nor have we found any, that would confer jurisdiction on the Division of Workers’ Compensation to sanction the payment of dependency benefits for a period exceeding that authorized by statute.”

To petitioner’s argument that NJM had previously agreed on the record to make payments beyond 450 weeks, the Court responded that a Judge of Compensation does not have authority to enforce an order that would extend benefits beyond statutory limits. The Court said that the Division of Workers’ Compensation lacks equitable powers.  Finally, the Court noted that it was sympathetic to the plight of petitioner since he remained incapacitated, but any change in the law must be effected by the Legislature.

This decision is noteworthy because there are so few cases involving dependent adults who are incapacitated and also few cases involving mistakes of law.  The ruling is correct that a Judge of Compensation is limited to his or her statutory powers.  For example, if there is no jurisdiction in New Jersey, (no accident, no contract and no employment in New Jersey), the Judge cannot hear the case even if the parties agree to present it in New Jersey.  Similarly, when a claim is time barred, even if the respondent agrees to waive the statute, the Judge cannot hear the case, because powers of the Judge of Compensation are limited to claims timely filed in the Division.

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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 jgeaney@capehart.com.