Denial of application of reconstruction of wages based on Katsoris.
The petitioner was employed part-time by the respondent as a stadium usher and worked full-time stocking shelves for employer B, a large box store. In 2009, she suffered a compensable accident at her part-time job. She filed a claim with the Division of Workers' Compensation seeking permanent partial disability benefits and made an application for reconstruction of wages pursuant to Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993). In Katsoris, The New Jersey Supreme Court instructed that reconstruction of wages is appropriate when a "petitioner has demonstrated that her injuries, which disable her from engaging in part-time employment, have disabled or will disable her with respect to her earnings capacity in contemporary or future full-time employment."
The petitioner testified she was not able to obtain another full-time job following her termination from employer B because of her injuries. She also testified that from July 2010 to December 2012, she collected unemployment benefits for which she certified that she was ready, willing and able to work. The petitioner admitted to doing a lot of physical work around her rural home, including mowing the grass and cutting wood with a small electric chainsaw. She further testified that she daily walked a mile and swam for exercise. Her medical expert opined that the petitioner could not return to full-time work due to limitations caused by her injuries. However, at the time of his testimony, he was unaware that, upon the conclusion of her treatment, she had returned to work part-time with the respondent, where she had to walk up and down the stadium steps routinely. Nor was he aware that the petitioner had gone back to daily walking a mile, swimming, and performing strenuous household duties.
The respondent’s medical expert was aware of the petitioner's return to work and her routine of strenuous household chores. He found that the petitioner was capable of full-time employment. The judge of compensation took into consideration the petitioner's admitted physical activities and her admission that she had received unemployment benefits for two and one-half years, based on her certification that she was "ready, willing and able to return to the work force on a full-time basis." Accordingly, the judge concluded that the petitioner failed to prove that she lacked the potential for full-time employment under Katsoris. On appeal, the Appellate Division affirmed the lower court’s granting of summary judgment, finding that the record supported the judge of compensation's factual findings.
Case Law Alerts, 4th Quarter, October 2019
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