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Sperling v. Board of Review12/11/1998
Argued September 28, 1998
The judgment is affirmed, substantially for the reasons expressed in Judge Baime's opinion of the Appellate Division, reported at 301 N.J. Super. 1 (1997).
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI and COLEMAN join in the Court's opinion. JUSTICE STEIN filed a separate Concurring opinion. JUSTICE O'HERN filed a separate Dissenting opinion.
STEIN, J., Concurring.
The Court affirms the judgment below on the basis of the Appellate Division's majority opinion. ___ N.J. Super. ___ (1998). I join in the Court's Disposition but write briefly to identify a collateral issue, raised at oral argument, that the Court's Disposition does not purport to resolve.
Petitioner sustained personal injuries under circumstances in which his right to compensation under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, was "in a twilight zone, with liability under the compensation law doubtful and dependent on the outcome of contested proceedings." Janovsky v. American Motorists Ins. Co., 11 N.J. 1, 5 (1952). In such circumstances, petitioner would have been entitled to receive temporary disability benefits pending resolution of his workers' compensation claim. See N.J.S.A. 43:21-30; Janovsky, supra, 11 N.J. at 5.
Petitioner testified that he applied to the Division of Temporary Disability Insurance (Division) for disability benefits, but the Division had no record of his claim and so informed him. Subsequently, he settled his compensation claim pursuant to N.J.S.A. 34:15-20 for $1500, of which $500 was allocated to counsel fees. Thereafter, he reapplied to the Division for temporary disability benefits, but the Division determined that he was ineligible because he had received a workers' compensation award for the same disability. A divided panel of the Appellate Division affirmed the Division's denial of benefits, holding that the receipt of benefits under the Workers' Compensation Act and the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -56, for the same injury is impermissible.
Before us, petitioner's counsel argued for reversal on the theory that if petitioner had in fact received temporary disability benefits from May 1993, when he allegedly applied, until October 1994 when his workers' compensation claim was settled for a nominal sum, the Division's right of subrogation would be limited to the amount of the compensation award. In that circumstance, because petitioner's temporary disability benefits would substantially exceed the compensation award, petitioner would receive benefits under both statutes for the same injury. Accordingly, petitioner argued that an award subsequent to the compensation settlement of temporary disability benefits for the same period in which petitioner would have been eligible to receive them prior to the settlement would not contravene the legislative plan. Petitioner emphasized that where the compensation settlement is nominal, reflecting the weakness of the compensation claim, a requirement that the worker fully reimburse the Division for temporary disability benefits substantially in excess of the compensation settlement would be self-defeating, because workers would be reluctant to agree to settle compensation claims if the settlement would generate a liability in excess of the amount received.
The Attorney General, representing the Board of Review, disagreed, contending that the statute required full reimbursement of temporary disability benefits by a worker who settles a compensation claim irrespective of the disparity between the benefits paid and the amount of the workers' compensation settlement. Subsequent to oral argument the
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