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Appellate Division Affirms Decision That a Motion for Past Benefits Should Not Be the Subject of a Motion Trial

By on August 16, 2013 in Compensability with 0 Comments

Caitlin Wilson was injured on September 8, 2011 when she dropped a heavy frame on her foot while in the employment of respondent Studio I, Inc. She received $420 per week from September 14, 2011 to October 24, 2011 in temporary disability benefits.  Her doctor advised that she could work light duty at the end of this period, but she did not return to work at this time.  She did return part-time from November 15 – 26, 2011.  She claims the respondent then told her not to return to work until she could work full-time.  Petitioner was paid $339.43 in temporary disability benefits for the period she worked part-time.

Respondent claimed that petitioner was authorized to return to work with restrictions on October 14, 2011.  It tried to accommodate the restrictions which actually increased over the next two months, but petitioner either did not arrive at work, arrived late or did not perform her job even with accommodations.  Respondent further claimed that petitioner stopped coming to work entirely without producing any medical note.  She resigned from the company on February 9, 2012 because she was moving. It was undisputed that petitioner returned to work on February 10, 2012.

On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits.  She argued that her wage was miscalculated and that she was entitled to temporary disability benefits from October 25, 2011 to November 14, 2011.  She maintained that her temporary disability benefits should have continued until February 3, 2012.   She also argued that when she filed the motion in January, 2012, she was not working at that time and was, in her view, entitled to temporary disability benefits.  Therefore, in her view, it did not matter that she later returned to work on February 10, 2012. She argued that she was entitled to a decision on her motion at that time.

The Judge of Compensation, Honorable Philip A. Tornetta, denied the motion because the claim concerned past periods of temporary disability and was contested by respondent.  The Judge relied on N.J.A.C. 12:235-3.2(a).

Motions for temporary disability and/or medical benefits shall evidence that petitioner is currently temporarily totally disabled and/or in need of current medical treatment.  Where only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section.

The Appellate Division reviewed the appeal and affirmed Judge Tornetta’s decision.  It said, “in this matter an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits.  Thus, this appeal is interlocutory.”   It relied on Della Rosa v. Van-Rad Contracting Co. Inc., 267 N.J. Super. 290, 294 (App.Div. 1993).  “A serious injustice might occur if a respondent were required to pay an award for temporary disability and medical services and then be unable to obtain the return of its monies in the event of reversal.  It would also be a matter of concern to petitioner to receive such payments with the prospect of possible repayment being required.”

The case can be found at Wilson v. Studio I, Inc., d/b/a/ Venture Photography, A-0117-12T4 (App. Div. August 8, 2013).  It is a useful case for practitioners in clarifying whether a motion for medical and temporary disability benefits should be heard early in the case or held to the end of the case when all issues will be decided.


This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.


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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