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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4566-08T3 JOHN OTTENS, Appellant, v. BOARD OF REVIEW and MURPHY BUS SERVICE, INC., Respondents. _________________________________________________________

Argued February 24, 2010 - Decided Before Judges Graves and Newman. On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 199,117. Paul A. Schwartz argued the cause for appellant (Wind & McCarter, P.A., attorneys; Mr. Schwartz, on the brief). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). PER CURIAM Appellant John Ottens (Ottens) appeals from a final decision of the Board of Review (the Board) affirming a determination of an Appeal Tribunal (the Tribunal) dated April 8, 2009, requiring him to reimburse the Division of Temporary Disability Insurance (the Division) in the amount of $11,696 paid as temporary disability benefits. We conclude from our review of the record and the briefs, and from oral argument, that there is sufficient credible evidence to support the Board's findings and conclusions. Accordingly, we affirm. Respondent Murphy Bus Service (Murphy) hired Ottens as a mechanic in 1997. In 1998, Ottens was diagnosed with neurofibromatosis type I after a medical evaluation revealed multiple neurofibromas, including a "cervical
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neurofibroma," in his neck and shoulder area. As a result, he underwent surgery in December 1998 for the removal of a tumor that had grown on his spinal cord nerves. On September 23, 2003, Ottens injured his shoulder in a work-related accident while employed by Murphy. He began receiving temporary workers' compensation benefits through a private carrier, New Jersey Manufacturers (NJM), on a weekly basis in the amount of $623.21, from September 23, 2003 through April 2004, for a total of $18,518.24. On December 30, 2003, Dr. Mark Rametta stated in a certification supporting Ottens's disability benefits claim that he diagnosed Ottens with "neurofibromyositis," "cervical sprain [and] strain," "shoulder separation," and "subluxation." In a report dated June 3, 2004, Dr. Richard Pelosi, Ottens's neurologist, stated that the work-related accident on September 23, 2003, aggravated Ottens's "underlying [neurological] condition." Dr. Pelosi further reported that the accident caused the following injuries: "[t]raumatic cervical sprain with fibromyositis"; "chronic shoulder separation or subluxation with instability on the right"; and "bilateral shoulder tendonitis." Ottens also received medical care authorized by Murphy from Dr. Robert Fernand. According to Dr. Fernand, Ottens reached a maximum medical recovery from his September 2003 work-related injury in April 2004. Therefore, his NJM temporary workers' compensation benefits terminated at that time. But because he was still unable to work, Ottens filed a claim petition with the Division of Workers' Compensation alleging he suffered permanent injuries. While that claim was pending, Ottens also filed a claim under the New Jersey Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -60, and he collected weekly disability benefits of $450 from April 21, 2004, through October 19, 2004, totaling $11,696. On January 9, 2004, prior to receiving State disability benefits, Ottens signed a "Certification of Contested Workers' Compensation Claim" in which he agreed he was seeking temporary disability benefits from the Division for a work-related disability and agreed to fully reimburse the Division if he received "any award or settlement for such disability . . . under the Workers' Compensation Law." Ottens also signed an identical subrogation agreement approximately five months later on June 24, 2004. On October 27, 2004, the Division issued a Notice of Lien, which was filed with the workers' compensation court and served on Ottens. The Notice of Lien stated: "This action is taken to ensure that the Division's right of subrogation in the matter is protected. That is, when an award/settlement is issued on your workers' compensation case, this agency is entitled to receive reimbursement of temporary disability benefits paid to you . . . for the job-

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related condition." Ottens subsequently appealed the Notice of Lien on July 31, 2008, pursuant to N.J.A.C. 12:235-3.18(a)(8)(ii) to -(a)(10). On the same day, the workers' compensation court found that Ottens was totally and permanently disabled as of October 20, 2004, and was entitled to 450 weeks of compensation. The order entered on July 31, 2008, provided that Ottens suffered "40% permanent total, orthopedic and neurological, right shoulder tendonitis and bilateral carpal tunnel syndrome with cervical radiculopathy." Ottens was awarded the total sum of $112,177.80 (180 weeks at $623.21) for his work-related injuries. The balance of the award, 270 weeks at $623.21 per week was to be paid by the Second Injury Fund. The order also provided that the outstanding Temporary Disability Benefits lien of $11,696 would be held in the trust account of Ottens's attorney pending a determination on whether reimbursement was required. Following a telephonic hearing on February 2, 2009, the Tribunal determined that Ottens was required to refund the disability benefits he received from the Division in the sum of $11,696 because he received workers' compensation benefits for the same injury. The Tribunal's findings and conclusions included the following: As the courts have stated in Janovsky v. American Motorists Ins. Co., 17 N.J. Super. 57, 60 (App. Div. 1951), and as reaffirmed in Sperling v. Board of Review, 301 N.J. Super. 1 (App. Div. 1997), the Disability Division is entitled to seek reimbursement of benefits from a Workers' Compensation award. In Janovsky it was noted that the right to reimbursement or subrogation applies to the entire award, including temporary and permanent disability allowances. The claimant was paid State Plan disability benefits for the same period that Worker[s'] Compensation benefits were received. The claimant had signed an agreement to reimburse the Division any advances that were paid. The Division is entitled to reimbursement in the amount of $11,696.00 as determined by the signed agreement and as affirmed by the Worker[s'] Compensation court. Ottens appealed the Tribunal's decision to the Board, which affirmed the decision on April 8, 2009. The Board advised Ottens that "[t]he Findings of Fact and Opinion as developed by the Appeal Tribunal and the allegations . . . have been carefully examined" and affirmed the decision reached "[o]n the basis of the record below." Ottens then filed a notice of appeal to this court on May 20, 2009. Our scope of review of a final agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). The standard requires us to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quotations omitted). Accordingly, we will not disturb an administrative agency's determinations or findings unless the decision was arbitrary, capricious, or unreasonable, or the decision was not supported by substantial evidence. In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008);

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Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). On appeal, Ottens argues a compensation judge is the appropriate authority to decide whether there is a duplication of benefits under N.J.S.A. 43:21-30. Additionally, Ottens argues there has been no duplication of disability benefits and workers' compensation benefits in this case, nor any finding of a "causal relationship between the reasons [the Division] paid benefits and the work-related injury." Therefore, according to Ottens, he should not be required to repay the temporary disability benefits he received. The Temporary Disability Benefits Law "was designed to provide for the payment of disability benefits to persons with respect to accidents and sickness not compensable under the Workers Compensation Act." Sperling v. Bd. of Review, 301 N.J. Super. 1, 4 (App. Div. 1997), aff'd o.b., 156 N.J. 466 (1998). The statute is designed to provide protection for lower income employees against the loss of earnings due to non-occupational illness or accident. N.J.S.A. 43:21-26. Notwithstanding this remedial purpose, temporary disability benefits may not be awarded if the wage earner suffers any accident or sickness arising out of and in the course of employment. N.J.S.A. 43:21-29. In addition, N.J.S.A. 43:21-30 prohibits the payment of workers' compensation benefits and disability benefits for the same injury. See N.J.S.A. 43:21-30, the Supreme Court has found its "overriding legislative plan and its practical operation to be fairly evident": Where an employee is disabled by accident or illness he will generally be entitled to benefits under either the compensation law or the benefits law, but not under both. If liability under the compensation law is clear, payment will be made thereunder, and if absence of liability under that statute is clear, payment will be made under the benefits law. If, however, as in the instant matter, the occurrence is in a twilight zone, with liability under the compensation law doubtful and dependent on the outcome of contested proceedings, immediate payment to help tide the worker over during his inability to work should be permissible and, indeed, readily available, under the benefits law, with full reimbursement from any award subsequently rendered in the compensation proceeding. We are satisfied that under N.J.S.A. 43:21-30 this right of reimbursement or subrogation, as described in the statute, applies to the entire award including temporary and permanent disability allowances; the single express statutory exception in favor of benefits for permanent disability "previously incurred" simply refers to unrelated payments still being made on any earlier compensable accident or disease. [Janovsky v. Am. Motorists Ins. Co., 11 N.J. 1, 5 (1952) (citation omitted).] In the present matter, Ottens argues Janovsky is inapplicable because here "there was no duplication of benefits as required by N.J.S.A. 43:21-30 for reimbursement." We do not agree. As the Tribunal found in its written decision dated February 2, 2009, Ottens received $11,696 in State Plan disability benefits from April 21, 2004 through October 19, 2004, and also received an award of benefits from the Division of Workers' Compensation for the same injury.

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Under those circumstances, N.J.S.A. 43:21-30 requires Ottens to reimburse the Division for the temporary disability benefits he received as a result of his work-related injuries. Accordingly, the Board properly determined that Ottens was obligated to repay the Division for the benefits he received. Ottens also contends that a compensation judge "is the appropriate authority" to decide whether he is required to reimburse the Division for the disability benefits he received in addition to his workers' compensation award. We find no merit in this argument. N.J.A.C. 12:235-3.18(a) provides that when a claimant has signed a written subrogation agreement, a dispute regarding reimbursement will be referred to the Division, where it is adjudicated by the Tribunal and reviewed by the Board. See N.J.A.C. 12:235-3.18(a)(3) to -(a)(10). Consequently, the reimbursement issue was properly decided by the Tribunal and the Board as required by the applicable administrative regulations. Affirmed.

N.J.A.C. 12:235-3.18(a)(8) provides that "[w]hile a judge of compensation would determine any contested issue with respect to temporary disability benefits payable" under the Workers' Compensation Act, a claimant may contest the amount of the lien or reimbursement required by filing an appeal to the Division of Temporary Disability Insurance pursuant to N.J.A.C. 12:235-3.18(a)(8) and -(a)(10). The Second Injury Fund is designed to pay the portion of a total and permanent disability award not caused by an individual's last employer and thereby encourage employers to hire partially disabled employees. Wright v. Port Auth. of N.Y. & N.J., 263 N.J. Super. 6, 15 (App. Div.), certif. denied, 133 N.J. 442 (1993). See also N.J.S.A. 34:15-94, -95. (continued) (continued) 10 A-4566-08T3 July 13, 2010 0x01 graphic

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