A Capehart Scatchard Blog

Board Of Education Is Assessed Penalties For Late Payments

By on February 10, 2012 in Uncategorized with 0 Comments

Lori Ferguson was hired as a physical education teacher for the Trenton Board of Education in 1998.  She taught full-time and also was approved by the Board as a summer school teacher in 2000, 2002, and 2003. 

On January 7, 2004, Ferguson was injured while setting up a scoreboard for her students.  A television fell off a stand and struck her in the head and neck.  She filed a claim petition on May 10, 2004 for injuries to her head, neck, and shoulder and she underwent surgery to her neck in November 2004.  She eventually had a second surgery and then returned to work in May 2006.  The Board did not pay her temporary disability benefits in July and August because she was on leave in April 2006 when hiring was conducted for summer employment.  The Board also did not pay her during the summer of 2005 because she had been medically unable to work at that time.

 On December 8, 2006, petitioner was awarded 40% permanent partial disability for her cervical spine injuries. She received $64,065 over 240 weeks after taking into account a credit due respondent, plus temporary disability benefits of $467 per week for 18 weeks, plus benefits for summer wages for 2004 and 2005.

 Before the award was entered, petitioner suffered a second work-related injury when a student jumped on her reinjuring her neck.  She filed this claim petition on December 6, 2006, two days before her award was entered on the first claim petition. She remained out of work until May 2007 for her orthopedic injuries, and then her doctor kept her out of work for another four months for cognitive problems.

Petitioner returned to work from September 2007 through December 12, 2007, when her doctor recommended that she go out on medical leave.  The Board did not pay temporary disability benefits from December 12, 2007 through May 16, 2008.  She also did not receive summer pay for July and August 2008.

On May 23, 2008 petitioner filed a reopener claim on the first award arguing that her conditions had worsened.  Next she filed a motion for medical and temporary disability benefits seeking treatment from May 2007.  The Board agreed to pay further treatment. 

On April 17, 2009, the judge of compensation entered an order on the second claim requiring the Board to continue to pay temporary disability benefits.  On July 31, 2009, the judge issued a second order continuing the obligation to pay temporary disability benefits. Two more orders followed on October 23, 2009 enforcing the July 31, 2009 order and requiring further medical treatment.  Petitioner later that year was awarded social security disability benefits. 

The key date in this chronology is May 20, 2010.  The Board stopped paying Ferguson temporary disability benefits on that date because she had been receiving social security disability benefits.  It took this action without court order.  Petitioner then moved to enforce the prior orders. At a hearing the Board argued that the finding of total disability in a social security hearing was tantamount to maximal medical improvement.  The respondent could not provide case law to support this position.

The case had initially been handled by the Honorable Emille Cox, Judge of Compensation, but some time into the life of the case,  the matter was transferred to the Honorable George Geist, Judge of Compensation.  Judge Geist  entered an order grantingFerguson’s motion to enforce the orders.  In the order of September 3, 2010, the judge ordered respondent to reinstate the payment of temporary disability benefits retroactive to the date last paid on or about May 20, 2010.  After five weeks after which payment had not been made, the judge of compensation held another hearing. 

On September 3, 2010 the Board moved for reconsideration of the prior order and requested a stay.  Ultimately the Board issued the checks on October 30, 2010, more than eight weeks after the entry of the September 3, 2010 order.  The payments were retroactive to February 26, 2010. 

On January 25, 2011, another hearing ensued on the applicability of penalties under N.J.S.A. 34:15-28.1 and 28.2.  The hearing led to another order dated February 9, 2011 assessing counsel fees against the Board of $8,310, plus a penalty of 25% or $4,269.  The Board appealed.

The Appellate Division approved the imposition of penalties and counsel fees, noting that the statute allows a judge of compensation to impose costs, simple interest, penalties, reasonable legal fees and fines up to $5,000. 

In addition, the Board argued that at a minimum there should be no penalties for the months of July and August because petitioner was not entitled to temporary disability benefits for that period since she had not proven consistent summer work in the past. The court disposed of this contention by focusing on the validity of the prior court order.  “Ferguson’s consistency or inconsistency in working summers prior to her injuries did not persuade Judge Cox to refrain from awarding benefits for the summer months, and nothing in the present record suggests that these benefits would represent a windfall to her.” 

 The case illustrates a number of key points of guidance.  When a court order has been entered, the respondent must seek permission for relief from the order.  In addition, it shows that the changes to the statute regarding penalties and counsel fees have teeth.  The case is also important because it may be the first Appellate level decision which has considered the argument that one who receives social security disability benefits is per se at maximal medical improvement.  Both the Judge of Compensation and the Appellate Division found no legal support for that position.

This case may be found at Ferguson v. Trenton Board of Education, A-3053-10T4 (App. Div. February 3, 2012).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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