(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued January 21, 1998 -- Decided July 1, 1998
O'HERN, J., writing for a majority of the Court.
The issue in this appeal is whether a teacher employed under a ten-month contract, injured at work during the
school year, is entitled to temporary disability benefits in workers' compensation during the summer recess period.
Mona J. Outland is employed by the Monmouth-Ocean Education Service Commission (“the Board”) as a
teacher of emotionally disturbed children. She suffered severe and disabling injuries on April 22, 1994 when one of her
students assaulted her. She was unable to return to work from April 23,1994 to June 30, 1994, when summer vacation
period commenced.
Despite her absence from school, Outland received 100" of her salary until the end of the school year
seventy percent by way of temporary disability benefits under a section of the Workers' Compensation Act, and the
remaining thirty percent under N.J.S.A. 18A:30-2.1. That section ensures that school employees who are unable to
report to work because of injuries they received in the course of their employment receive their full salaries and lose
no sick leave during the period of their disability. The section requires the employer to pay the injured employee his
or her full salary or wages for the period of his or her absence for up to one calendar year. Amounts paid under that
section are reduced by the amount of any workers' compensation award made for temporary disability.
Although N.J.S.A. 18A:29-3 allows school boards to offer academic-year employees the option to have ten
percent of their salaries withheld and then paid over the summer, Outland had not elected to be paid on the twelve-month plan. Therefore, by the end of the school year, she had received 100" of the salary that the Board had agreed
to pay her for that school year.
Outland's disability payments ceased after June 30, 1994. Although the Board did not dispute that the
payments would have to resume at the beginning of the next academic year had Outland not been able to return to
work by then, it refused to pay benefits over the summer recess. Outland filed a motion for temporary disability
benefits in the Division of Workers' Compensation. She argued that the Board's payment of 70" percent of her
salary pursuant to N.J.S.A. 34:15-12 should continue over the summer months.
While her matter was pending, the Appellate Division rendered it decision in Porter v. Elizabeth Board of
Education,
281 N.J. Super. 13 (App. Div.), cert. denied,
142 N.J. 455 (1995), in which the Appellate Division upheld a
ruling of the Division of Workers' Compensation (the Division) requiring the Elizabeth Board of Education to pay
Porter temporary disability benefits over the summer for injuries he had sustained while teaching. In that case, the
Appellate Division focused on the Legislature's use of the term “calendar year” in N.J.S.A. 18A:30-2.1 to reach the
conclusion that the Legislature intended that school board employees be fully compensated for the time during which
they are temporarily disabled without regard to whether that disability fell within the school year or the summer recess.
The effect of the Appellate Division's decision in that case was that teachers who had elected to be paid on the ten-month plan, who were temporarily disabled as a result of injuries suffered in the course of their employment, and
whose disabilities lasted beyond the end of the school year, would continue to receive temporary disability benefits
under workers' compensation during the summer recess, regardless of whether those teachers had planned to take
summer jobs.
The compensation judge followed Porter and awarded Outland workers' compensation temporary disability
benefits for the duration of the summer recess. The Board appealed.
The Appellate Division reversed the award of the compensation judge. Disagreeing with the Porter decision, the panel concluded that neither the Workers' Compensation Act nor N.J.S.A. 18A:30-2.1 was intended to provide
injured workers with a means to recover wages that were not lost. Therefore, because there was no evidence that
Outland had “lost” any wages over the summer, and because during the summer she was not “absent from [her] post
of duty” as a teacher, the panel found that neither of the relevant statutes entitled her to disability payments over the
summer.
The Supreme Court granted Outland's petition for certification.
HELD: Outland, a teacher employed under a ten-month contract, injured at work during the school year, is entitled
to temporary disability benefits in workers' compensation during the summer recess period if she can establish that
her work-related injury caused her to lose income she could otherwise have earned from summer employment.
1. In using the term “calendar year” in N.J.S.A. 18A:30-2.1, the Legislature did not intend to establish any sort of
affirmative obligation of an employer to pay benefits during the summer or any other point in a year when the teacher
would not have earned a salary for teaching. (pp. 6-7)
2. No payments are due under the sick leave act during the summer because the injured teacher is not absent from
her “post of duty” as a teacher. However, under the Workers' Compensation Act, the injured teacher should be
entitled to temporary disability benefits during the summer months if she can prove that she is unable to resume
whatever type of work she otherwise would have had. The payments therefore would not constitute a double recovery
or windfall for her but rather a replacement of income from work actually lost, whether covered by a benefit program
or not. (pp. 7-8)
3. Under the Workers' Compensation Act, temporary disability benefits are payable until the employee is able to
resume work, and not just until the contract for hire was to have expired. (pp. 8-9)
4. The Legislature could never have intended that an employee's seasonal status would fortuitously shield an employer
from its obligation to compensate for the loss of a seasonal opportunity to earn income. A teacher's ability to choose
to be paid on a twelve-month basis, pursuant to N.J.S.A. 18A-29-3, does not make the teacher's job any less seasonal.
(pp. 9-12)
5. To deny payments based on lost summer employment would frustrate the purpose of the workers' compensation
system, which is “to compensate for the inroad upon the full-time earning capacity of the victim of industrial mishap.”
(pp. 12-13)
6. The Workers' Compensation Act is not intended to compensate for wages that are not lost. Therefore, because
the record does not disclose that Outland actually lost income during the summer, the proper disposition is to remand
so that she may have the opportunity to prove that her injuries caused her to lose income she could otherwise have
earned from summer employment. (pp. 13-14)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Division of
Workers' Compensation to determine whether or not Outland suffered any loss of wages from summer employment.
JUSTICE HANDLER filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE
GARIBALDI join. Justice Handler believed that the result reached by the Court goes beyond the provisions of the
Workers' Compensation Act and that there should be no escape in this case from the straightforward rule that a
worker is not temporarily disabled if the worker is not absent from work and thus not suffering wage loss attributable
to that work.
JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE O'HERN's opinion. JUSTICE
HANDLER filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI join.
SUPREME COURT OF NEW JERSEY
A-
48 September Term 1997
MONA J. OUTLAND,
Petitioner-Appellant,
v.
MONMOUTH-OCEAN EDUCATION SERVICE
COMMISSION,
Respondent-Respondent.
Argued January 21, 1998 -- Decided July 1, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
295 N.J. Super. 390 (1996).
Bruce Fromer argued the cause for appellant
(Nelson & Fromer, attorneys; Wendi S.
Ledwitz, on the brief).
Robert Silver argued the cause for respondent
(Michals, Wahl, Silver & Leitner, attorneys).
Aileen M. O'Driscoll argued the cause for
amicus curiae New Jersey Education
Association (Zazzali, Zazzali, Fagella &
Nowak, attorneys; Ms. O'Driscoll, Richard A.
Friedman and Kathleen A. Naprstek, on the
letter briefs).
Cynthia J. Jahn, Director Legal Department,
argued the cause for amicus curiae New Jersey
School Boards Association.
The opinion of the Court was delivered by
O'HERN, J.
We granted certification to consider an asserted conflict
between the decision below and that in Porter v. Elizabeth Board
of Education,
281 N.J. Super. 13 (App. Div.), certif. denied,
142 N.J. 455 (1995). The issue in each case is whether a teacher
employed under a ten-month contract, injured at work during the
school year, is entitled to temporary disability benefits in
workers' compensation during the summer recess period.
The conflict involves the interpretation of N.J.S.A. 18A:30-2.1. That section ensures that school employees who are unable
to report to work because of injuries they received in the course
of their employment receive their full salaries and lose no sick
leave during the period of their disability. The section reads
as follows:
Whenever any employee, entitled to sick leave
under this chapter, is absent from his post
of duty as a result of a personal injury
caused by an accident arising out of and in
the course of his employment, his employer
shall pay to such employee the full salary or
wages for the period of such absence for up
to one calendar year without having such
absence charged to the annual sick leave or
the accumulated sick leave provided in
sections 18A:30-2 and 18A:30-3. . . . Any
amount of salary or wages paid or payable to
the employee pursuant to this section shall
be reduced by the amount of any work[ers']
compensation award made for temporary
disability.
Mona J. Outland is employed by the Monmouth-Ocean Education Service Commission. (We shall refer to it as the Board.) A teacher of emotionally disturbed children, Outland suffered severe and disabling injuries when one of her students assaulted her on April 22, 1994. She was unable to return to work from April 23, 1994 to June 30, 1994, when the summer vacation period commenced.
At the time of her injury, Outland's weekly salary was $593. Despite her absence from school, she received 100" of that salary over the remainder of the school year: seventy percent ($415) by way of temporary disability benefits under a section of the Workers' Compensation Act, N.J.S.A. 34:15-12, and the remaining thirty percent ($178) under N.J.S.A. 18A:30-2.1.
Teachers normally are paid on the basis of an academic year rather than a calendar year. Most teachers thus do not receive pay checks during the summer, when schools are in recess. N.J.S.A. 18A:29-3, however, allows school boards to offer academic-year employees the option to have ten percent of their salaries withheld and then paid over the summer. A statement accompanying that legislation recites that the amounts paid during the summer to employees who select that so-called "twelve-month plan" are deemed to have been earned as of the preceding June 30th. Introductory Statement, Assembly, No. 3679, L. 1979, c. 495. Outland, however, had not elected to be paid on the twelve-month plan. Outland therefore, by the end of the school
year, had received 100" of the salary that the Board had agreed
to pay her for that school year.
Outland's disability payments ceased after June 30, 1994.
Although the Board did not dispute that disability payments would
have to resume at the beginning of the next academic year had
Outland not been able to return to work by then, the Board
refused to pay benefits to Outland over the summer recess, which
ran from July 1 to August 31, 1994.
Outland filed a motion for temporary disability benefits in
the Division of Workers' Compensation. She argued that the
Board's payment of benefits equal to seventy percent of her
weekly wage, which the Board had been paying pursuant to N.J.S.A.
34:15-12, should continue over the summer. She has not claimed,
neither in the Division nor on appeal, that the Board was
obligated by N.J.S.A. 18A:30-2.1 to pay the remaining thirty
percent of her weekly salary during the summer recess.
While her matter was pending, the Appellate Division
rendered its Porter decision.
281 N.J. Super. 13. Donald Porter
was a teacher in Elizabeth who sustained a back injury while
teaching. The Division of Workers' Compensation (the Division),
among other rulings, ordered the Elizabeth Board of Education to
pay Porter temporary disability benefits over the summer. On the
school board's appeal, the Appellate Division affirmed the
Division's holding on that issue. In interpreting N.J.S.A.
18A:30-2.1, the court focused on the Legislature's use of the
term "calendar year." The court was "convinced that the
Legislature, in utilizing the term 'calendar year' rather than
'school year' as the applicable time period, [intended] that
school board employees be fully compensated for the time during
which they are temporarily disabled without regard to whether
that disability falls within the school year or the summer
recess." 281 N.J. Super. at 21. The effect of the Appellate
Division's decision was that teachers who had elected to be paid
on the regular ten-month plan, who were temporarily disabled as a
result of injuries suffered in the course of their employment,
and whose disabilities lasted beyond the end of the school year
would continue to receive temporary disability benefits under
workers' compensation during the summer recess regardless of
whether those teachers had planned to take summer jobs.
The compensation judge followed Porter and awarded Outland
$3,675.71 in workers' compensation temporary disability benefits,
an amount equal to 70" of her weekly salary multiplied by the
number of weeks in the summer recess. The Board appealed. The
Appellate Division reversed the award of the compensation judge.
Disagreeing with the Porter decision, the Outland panel concluded
that neither N.J.S.A. 18A:30-2.1 nor the Workers' Compensation
Act was intended to provide injured workers with a means to
recover wages that were not lost. 295 N.J. Super. at 397.
Because there was no evidence that Outland had "lost" any wages
over the summer, and because during the summer she was not
"absent from [her] post of duty" as a teacher, the Appellate
Division held that neither of the relevant statutes entitled her
to disability payments over the summer. Id. at 398.
favored a double recovery. See N.J.S.A. 34:15-40 (entitling
providers of workers' compensation benefits to recover amounts
paid to injured employee by third parties, up to the amount of
workers' compensation benefits paid); Midland Ins. Co. v.
Colatrella,
102 N.J. 612, 618 (1986) (affirming application of
workers' compensation lien to proceeds recovered by injured
worker from his uninsured motorist policy, when worker had
previously recovered workers' compensation benefits).
Correctly understood, the significance of the "calendar
year" language for a teacher whose inability to work began toward
the end of a school year and lasted through the summer is that
the payments due under N.J.S.A. 18A:30-2.1, after ceasing during
the summer months when the teacher would not have taught, would
have to resume in the fall when the teacher would otherwise have
returned to the classroom. The payments would then continue
until the first anniversary of the commencement of the teacher's
disability, provided the disability lasted that long.
Understood in the context of N.J.S.A. 18A:30-2.1, the
workers' compensation temporary disability benefits payable under
N.J.S.A. 34:15-12, serve, during the school year, as a credit
toward the disability income due to the occupationally injured
teacher under the sick leave statute. During the summer recess
period the workers' compensation temporary disability benefits
serve to replace the wages lost from other employment because of
the occupational injury. No payments are due under the sick
leave act during the summer because the injured teacher is not
absent from her "post of duty" as a teacher. The Workers'
Compensation Act, on the other hand, is not tied so specifically
to a particular occupation. The injured teacher should be
entitled to workers' compensation temporary disability benefits
during the summer if she can prove that she is unable to resume
whatever type of work she otherwise would have had.
Therefore, the payments that Outland seeks do not constitute
a double recovery or windfall for her but rather a replacement of
income from work actually lost, whether covered by a benefit
program or not. The Board argues that entitlement under the
Workers' Compensation Act is based on the contract in force at
the time of the injury, and that because Outland received all of
the money that was due to her under her contract, any further
payments would overcompensate her. The Board's argument is
premised on the thesis that the contract of hire (the teaching
contract) determines whether temporary disability benefits are
paid. It reasons that workers' compensation benefits to an
employee are based on the "wages" of an employee, a term that is
defined under N.J.S.A. 34:15-37 as the money rate of pay "under
the employment contract." There being no money due over the
summer under the teaching contract, the Board reasons that no
benefits for disability are due. The flaw in the argument is
that if temporary benefits were payable only during the time that
the contract of hire were to have been in existence, a seasonal
worker, such as a farm laborer who suffered an injury near the
end of a harvest season, would receive no temporary disability
benefits after the season was over. The contract of hire would
have expired.
We agree with petitioner that there is no such restriction
in the Workers' Compensation Act. Temporary disability benefits
are payable until the employee is "able to resume work," N.J.S.A.
34:15-12 and -38, not just until the contract for hire was to
have expired. Under the Board's reasoning, a callous employer
could avoid all responsibility for temporary disability benefits
to an at-will employee by asserting that it had, before the
accident, planned to terminate the employee. There being no
money due under the employment contract (it would have been
terminated), there would be no temporary disability benefits due
to the injured worker. We surmise that in that circumstance our
dissenting members might fall short of following the logic of the
board. However, their understanding is not sufficiently stirred
to perceive in the case of Mona Outland the failed logic of the
Board.
Our dissenting colleagues cite numerous cases establishing
that an injured employee may collect workers' compensation
temporary disability benefits only if that employee has lost
wages. See post at ___ (slip op. at 3-4). That proposition is
not in dispute. What is in dispute is whether an injured
employee may collect workers' compensation temporary disability
benefits for wages the claimant would have earned from another
job. None of the cases cited by the dissent limit a claimant to
compensation for wages lost from the job on which the injury took
place. In contrast, there is well-reasoned support for an injured employee's entitlement to compensation for wages the employee would have earned from off-season employment. See Powell v. Industrial Comm'n, 441 P.2d 553, 556 (Ariz. Ct. App. 1968) (calculating teacher's average monthly wage, for workers' compensation purposes, by dividing the teacher's annual salary by nine, as opposed to twelve months, and reasoning that during the months not covered by the contract with the school board, "[the teacher's] time was her own"); Dominquez v. Industrial Comm'n, 529 P.2d 732, 740 (Ariz. Ct. App. 1974) (setting aside the calculation of "average monthly wage" of a seasonal fruit picker where hearing officer multiplied the worker's monthly wage of $389.63 by potential duration of employment of five months, then dividing that product by twelve; and noting that a hearing officer should consider whether claimant's "prior work record indicated that he had continually been employed for twelve months of the year in different seasonal jobs," in which case the award could be tailored to the "employee's particular situation" to reflect more accurately the claimant's earning capacity); 33 U.S.C.A. §910 (Longshore and Harbor Workers' Compensation Act) (setting forth that, for workers' compensation purposes, the "annual average earnings" of an injured longshoreman, who "shall not have worked in such employment during substantially the whole of the year immediately preceding the injury," shall equal "three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or
salary for a five-day worker, which he shall have earned in such
employment during the days when so employed").
Unlike our dissenting colleagues, we cannot ignore the
reality that teachers often supplement their income during the
summer. Many teachers base mortgage commitments on the
expectation of a supplemental summer income. For others, summer
jobs are essential in building a child's college fund. The two
month recess places teachers in a special category. Mona Outland
is not claiming benefits based on a lost capacity to work an
extra few hours at the end of an eight-hour work day. Nor is she
claiming compensation for a lost opportunity to pick up some
extra cash during a paid week's vacation. She, like most
teachers, has an entire season off, during which neither work nor
income is due under the employment contract. She is a seasonal
employee, like a laborer hired to harvest crops or wrap Christmas
gifts. In fact, Dean Larson, in his workers' compensation
treatise, uses a teacher as his prime example of a seasonal
employee. 2 Arthur Larson, The Law of Workmen's Compensation §
60.22(a) (1989). The Legislature could never have intended that
an employee's seasonal status would fortuitously shield an
employer from its obligation to compensate for the loss of such a
significant opportunity to earn income.
A teacher's ability to choose to be paid on a twelve-month
basis, pursuant to N.J.S.A. 18A:29-3, does not make the teacher's
job any less seasonal. We noted above that salaries paid over
the summer to school board employees who choose to be paid on the
twelve-month plan are deemed to have been earned as of the
preceding June 30th. The selection of this twelve-month plan is
nothing more than a decision to defer the receipt of income
previously earned. A teacher on the twelve-month plan injured
during the school year would be entitled to both workers'
compensation temporary disability benefits and the additional
benefits afforded by the sick leave act. Those benefits would be
"earned" as of June 30th but deferred into the summer in
accordance with the teacher's choice. (We illustrate these cash
flows in the Appendix to this opinion.) Had the teacher planned
to work during the off-season, and had the injury prevented her
from doing so, the teacher would be entitled to receive
additional workers' compensation temporary disability benefits
during the summer. Benefits received per pay period during the
summer would be greater than the pay checks of an uninjured
employee who selected the twelve-month plan, but that difference
is a meaningless consequence of the original decision to defer
income earned during the school year.
In short, we would agree with the Board that Outland would
not be entitled to temporary disability benefits if Outland
planned to relax all summer, perhaps vacationing at the Jersey
shore. In that case the benefits would represent a windfall.
But the payment of temporary disability benefits would not create
a windfall if Outland planned to work during the summer recess
and had her injury prevented her from following through with that
plan. On the contrary, to deny payments based on lost summer
employment would frustrate the purpose of the workers'
compensation system, which is "to compensate for the inroad upon
the full-time earning capacity of the victim of industrial
mishap." Maver v. Dwelling Managers Co.,
34 N.J. 440, 443 (1961)
(Weintraub, C.J.) (emphasis added).
We therefore cannot accept the Board's contention that the
sum of the salary Outland received prior to her injury and her
temporary disability benefits may not exceed the amount she was
due to earn as income over the entire school year. To accept the
Board's contention would make second-class citizens of teachers
in contrast to other seasonal employees. Although a seasonal
employee's benefits must be based on the hourly, daily or weekly
wage provided "under the contract of hiring in force at the time
of the accident," N.J.S.A. 34:15-37, a seasonal employee's
aggregate recovery of workers' compensation temporary disability
benefits has no necessary relationship to the aggregate amount
due to him or her under the contract in force at the time of the
injury. We repeat that the purpose of the Workers' Compensation
Act is "to compensate [the worker] for the inroad upon the full-time earning capacity of the victim of industrial mishap."
Maver, supra, 34 N.J. at 443. Most teachers work twelve months
out of the year, not just ten. A teacher such as Mona Outland
should be compensated for the loss of two months of earning
capacity when the loss is caused by an assault by a student
during the school year.
On the other hand, as our dissenting members are at great
pains to note, the Workers' Compensation Act is not intended to
compensate for wages that are not lost. The record does not
disclose that Outland actually lost income during the summer.
The lack of evidence on that point likely arose because the
parties concluded that the Porter opinion held that teachers are
statutorily entitled to summertime benefits under workers'
compensation by virtue of their employment as teachers. The
proper disposition of this case is therefore to remand so that
Outland may have the opportunity to prove that her injuries
caused her to lose income she could otherwise have earned from
summer employment. See Knight v. Cohen,
32 N.J. 497, 499-500
(1960).
The parties have not addressed whether the Board may be
entitled to an offsetting credit under the principles set forth
in Young v. Western Electric Co.,
96 N.J. 220 (1984). The Court
therefore has not considered that issue.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Division of Workers' Compensation to
determine whether or not petitioner suffered any loss of wages
from summer employment.
JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE O'HERN's
opinion. JUSTICE HANDLER has filed a separate dissenting
opinion, in which CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI
join.
To illustrate the point, we shall depict the total gross earning capacity between April 1 and September 1 of a hypothetical teacher/summer worker. Assume for illustration that the teacher earns
$36,000 for teaching
$ 6,000 for summer work, for example, as a camp counselor,
beach club manager, or pari-mutuel clerk
For a teacher on a 10-month pay plan:
April May June July/August
$3600 $3600 $3600 $6000 = $16,800
For a teacher on a 12-month pay plan:
April May June July/August
$3000 $3000 $3000 Deferred 2/12 of $3600 salary
from April, May, June = $1,800See footnote 1
summer job = 6,000 = $16,800
The Board's theory of replacing the teacher/worker's earning capacity between April and September is:
For a teacher on a ten-month pay plan:
April May June July/August
T/DSee footnote 2 $1936 $1936 $1936
SLASee footnote 3 $1664 $1664 $1664 ----0---- for lost summer job
= $10,800
_____ _____ _____
$3600 $3600 $3600
For a teacher on a twelve-month pay plan:
April May June July/August
T/D $1936 $1936 $1936 $1800 deferred1 +
SLA $1664 $1664 $1664 ----0---- for lost summer
2/12 (600) (600) (600) job = $10,800
deferred _____ _____ _____
$3000 $3000 $3000
Outland's theory of replacing lost earning capacity between April and September is:
For a teacher on a ten-month pay plan:
April May June July/August
T/D $1936 $1936 $1936 8 wks of T/D
SLA $1664 $1664 $1664 @ $484 per week or $38724
_____ _____ _____ = $14,672
$3600 $3600 $3600 (still less than the wages lost,
no double recovery)
For a teacher on a twelve-month pay plan:
April May June July/August
T/D $1936 $1936 $1936 Deferred income $1800
SLA $1664 $1664 $1664 8 wks. of T/D $3872See footnote 4 = $14,672
deferred (600) (600) (600) (again still less than the wages
$3000 $3000 $3000 wages lost, no double recovery)
SUPREME COURT OF NEW JERSEY
A-
48 September Term 1997
MONA J. OUTLAND,
Petitioner-Appellant,
v.
MONMOUTH-OCEAN EDUCATION
SERVICE COMMISSION,
Respondent-Respondent.
HANDLER, J., dissenting.
The Court holds that a temporarily disabled teacher employed
under a ten-month contract by the board of education may seek to
recover from her employer temporary disability benefits covering
the summer recess period, even though she was already completely
compensated for her lost wages as a teacher. The result reached
by the Court goes well beyond the provisions of the Workers'
Compensation Act. I, therefore, dissent.
is the natural and proximate cause." N.J.S.A. 34:15-1. The Act
is social legislation with its primary purpose being "to provide
an employee, when he suffers a work-connected injury, with a
speedy and efficient remedy for loss of wages." Cureton v. Joma
Plumbing & Heating Co.,
38 N.J. 326, 331 (1962).
The heart of the statute is the schedule of payments
provided in N.J.S.A. 34:15-12. "For injury producing temporary
disability, [the schedule of compensation is] 70" of the worker's
weekly wages received at the time of the injury. . . . This
compensation shall be paid during the period of such disability,
not, however, beyond 400 weeks." N.J.S.A. 34:15-12a (emphasis
added). "Wages" are defined as "the money rate at which the
service rendered is recompensed under the contract of hiring in
force at the time of the accident." N.J.S.A. 34:15-37 (emphasis
added). For temporary disability, these benefits are to be
calculated according to the provisions of N.J.S.A. 34:15-38,
which states as follows:
To calculate the number of weeks and fraction
thereof that compensation is payable for
temporary disability, determine the number of
calendar days of disability from and
including as a full day the day that the
employee is first unable to continue at work
by reason of the accident, including also
Saturdays, Sundays and holidays, up to the
first working day that the employee is able
to resume work and continue permanently
thereat . . . . The resulting whole number
and sevenths will be the required period for
which compensation is payable on account of
temporary disability.
In sum, the scheme for awarding temporary disability
benefits requires that, first, as the result of an accident
arising out of and in the course of employment, the employee must
be temporarily disabled. N.J.S.A. 34:15-1; N.J.S.A. 34:15-12a.
Next, if the employee is temporarily disabled, the employee is
entitled to receive 70" of his or her wages as determined by
looking at the employment contract at the time of the accident.
N.J.S.A. 34:15-12a; N.J.S.A. 34:15-37. Finally, once the rate of
compensation is determined, the amount of time the employee
receives benefits is determined by when the employee returns to
work. N.J.S.A. 34:15-38.
The threshold inquiry is whether the worker is temporarily
disabled. N.J.S.A. 34:15-12a ("[C]ompensation shall be paid
during the period of such disability."). The Act itself does not
define "temporary disability." It is a contextual concept that
relates the disability to the work and to the wages from the
work. Courts attempting to articulate a definition for the term
have recognized the functional relationship between disability
and its necessary effect on work and wages. In Calabria v.
Liberty Mutual Insurance Co.,
4 N.J. 64 (1950), the Court stated
in dictum that an employee cannot make a claim for temporary
disability without being absent from work. Id. at 68 ("Calabria
made no claim for temporary disability. He could not because
there had been no absence from work."). Such a basic rule, that
an employee is not temporarily disabled if the employee is not
absent from work and thus losing wages from that work, has been
repeated numerous times by the courts of New Jersey. See, e.g., Young v. Western Elec. Co., 96 N.J. 220, 226 (1984) ("temporary disability compensation . . . payments are in lieu of those wages"); Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966) ("[T]emporary disability represents a partial substitute for loss of current wages."); Gorski v. Town of Kearny, 236 N.J. Super. 213, 215 (App. Div. 1989) ("Temporary disability benefits are paid in lieu of salary."); Electronic Assocs., Inc. v. Heisinger, 111 N.J. Super. 15, 20 (App. Div. 1970) ("Petitioner here is entitled to no award for temporary disability because she suffered no current wage loss as a result of an ailment attributable to her occupation."); General Motors Acceptance Corp. v. Falcone, 130 N.J. Super. 517, 520 (Cty. Ct. 1974) ("The award is 'in lieu of wages.'" (quoting Williams v. Newark Dept. of Welfare, 43 N.J. Super. 473, 477 (Cty. Ct. 1957)); Worthington v. Plainfield Bd. of Educ., 23 N.J. Misc. 14, 19 (Dept. Labor 1944) ("[P]etitioner is not entitled to any temporary disability [benefits], there being no lost compensable time."); Krov v. Centaur Const. Co., 18 N.J. Misc. 593, 596 (Dept. Labor 1940) ("The petitioner having lost no time from his work, is not entitled to compensation for temporary disability."). The major treatise on Workers' Compensation is in accord with this proposition. See 1C Arthur Larson, Larson's Workmen's Compensation Law § 57.12(b) at 10-19 (1993) ("Temporary total . . . and temporary partial occasion relatively little controversy,
since they are ordinarily established by direct evidence of
actual wage loss.")
There should be no escape in this case from the
straightforward rule that a worker is not temporarily disabled if
the worker is not absent from work and thus not suffering wage
loss attributable to that work. Outland suffered her injury in
late April and, as a result of the injury, missed work until June
30, the end of the school year and her contract period; during
that time of absence from work, she suffered a wage loss
attributable to that work. Hence, her temporary disability
occurred during and was limited by that period, and she
appropriately was awarded temporary disability benefits based on
those definitional elements. For the summer months, however,
Outland was not absent from work nor did she suffer a loss in
wages because there was no work from which she was absent. Even
considering possible outside employment, Outland did not suffer a
loss of wages under the Act because N.J.S.A. 34:15-37's
definition of wages looks only to the employment contract in
force at the time of the accident. Thus, Outland was not
"temporarily disabled," within the meaning of the Act, during the
summer months. Not being temporarily disabled, Outland was not
entitled to any benefits for the summer months.
Even if the Court were properly reading the statute, the
result the Court reaches should be avoided. See State v.
Provenzano,
34 N.J. 318, 322 (1961) (ruling that in any endeavor
involving statutory construction, an important maxim to consider
is that "a statute will not be construed to lead to absurd
results. All rules of construction are subordinate to that
obvious proposition."). The Court's conclusion that Outland can
recover benefits if she lost wages over the summer attributable
to some other kind of employment will lead to anomalous results
in the context of the statute and legislative scheme.
The purpose of the Act is to provide a portion of the
employee's salary when the employee suffers a wage loss as a
result of a work-related injury. "Compensation was to be a
benefit earned. It was to be a matter of right and not of grace
or related in any way to the dole." Moore v. Magor Car Corp.,
27 N.J. 82, 85 (1958). To provide summer benefits for full-time
teachers who are on a ten-month contract and who are not employed
under their contract over the summer is an extraordinary and
untoward result in light of the Act's purpose -- it asks the
Division of Workers' Compensation to order payments for the
teacher beyond her actual earned salary.
The result the Court reaches is even less tenable when the
sick leave chapter of the Education Title is taken into
consideration. Under N.J.S.A. 18A:30-2.1, the school board
employee is entitled to be paid the full salary or wages for the
employee's period of absence. Thus, a teacher injured during the
school year receives his or her entire salary from a combination
of temporary disability benefits and supplemental benefits under
the Education Title. A continuing award of benefits over the
summer would place the school board in the position of paying
employees more than their completed full-time contract. Such
results are surely unwarranted. Cf. 2 Larson, supra, § 60.22(a)
at 10-715 ("If a school teacher, for example, is paid $2,000 a
month for nine months of the year, there is no reason to
calculate earning capacity on the unrealistic basis of $2,000 a
month for twelve months."). Other jurisdictions that have faced
comparable situations under similar workers' compensation laws
have also concluded that awarding benefits over the summer months
would be irrational. See, e.g., School Dist. No. 401 v. Minturn,
920 P.2d 601 (Wash. Ct. App. 1996); Herbst's Case,
624 N.E.2d 564
(Mass. 1993).
The appendix included in the Court's opinion attempts to
illustrate that a teacher receiving worker's compensation
benefits over the summer would not be receiving a "double
recovery." Ante at __ (slip op. at App., p. 15). In the Court's
example, a teacher receiving benefits over the summer would
receive $14,672 whereas a non-injured teacher, again in the
Court's example, would receive $16,800. The problem with that
example is that the Court is assuming that the appropriate
comparison is to the total combined earnings the teacher would
receive between April and August. That comparison is misleading.
The school board did not bargain to pay the teacher the money in
the months of July and August that the Court includes in its
example. Thus, the correct comparison is between the $14,672 the
teacher would receive between April and August if she were
injured and receiving benefits over the summer and the $10,800
she would receive from the school board between April and August
had she not been injured. Obviously, the amount she would
receive including workers compensation over the summer months is
in excess of the amount in her contract with the school board.
(That is true regardless of whether she is paid on the ten-month
or twelve-month plan.) The majority's inclusion of the summer
wages in its illustration is merely an attempt to mask this fact.
Highlighting the anomalous nature of the Court's conclusion
is that under its reasoning if Outland proves she lost any wages
over the summer, N.J.S.A. 34:15-37 would require that Outland be
paid temporary disability benefits over the summer at the rate of
$415 per week because that is seventy percent of her wages at the
time of her injury. If Outland's hypothetical summer job was a
minimum wage job paying her roughly $200 per week, the Act as
interpreted by the Court would nonetheless require the school
board to pay Outland based on her higher school-year salary. The
alternative would be reading into the Act a provision that
Outland's temporary disability benefits would change to a
different rate over the summer; however, reading that provision
into the Act would be a bold form of judicial legislation. No
such provision exists, and the anomaly of paying Outland more
over the summer than she would otherwise have made at her summer
job highlights how problematic the majority's reasoning is.
The Court advances its own notions of public policy as a basis for its conclusion that Outland is entitled to temporary disability benefits over the summer. The Court claims that there is no restriction in the Act that should limit recovery for seasonal workers. The Court expresses its concern over seasonal workers by stating that "[t]he flaw in the [school board's] argument is that if temporary benefits were payable only during the time that the contract of hire were to have been in existence, a seasonal worker, such as a farm laborer who suffered an injury near the end of a harvest season, would receive no temporary disability benefits after the season was over." Ante at __ (slip op. at 8). In taking the prospect of seasonal employment into consideration, the Court ventures beyond the facts and genuine policy implications of this case.See footnote 5 This concern over seasonal employment is well-intentioned. It has always been recognized and acknowledged by this Court and the Legislature. E.g., Vasquez v. Glassboro Service Assoc., Inc., 83 N.J. 86 (1980) (protecting the housing interests of migrant farm workers); State v. Shack, 58 N.J. 297 (1971) (allowing non-profit organization onto private property to assist migrant farm workers); N.J.S.A. 34:9A-1 to -41 (Seasonal Farm Labor Act). It should not serve, however, to warp a clear statute or to advance a social policy not adopted by the Legislature.
The root of the Court's concern over seasonal workers is in
N.J.S.A. 34:15-38's provision for calculating benefits. The
Court reasons that the calculation required includes the summer
months because the provision requires payment over the entire
period until the employee is "able to resume work." Such a
reading converts N.J.S.A. 34:15-38 from a provision that merely
describes how to calculate benefits to a provision granting the
substantive right to receive benefits. By its own terms, though,
N.J.S.A. 34:15-38 describes the process of calculating benefits
only if there is a "temporary disability." Over the summer,
Outland was not "temporarily disabled" because she was not losing
any wages she would have otherwise received from her employment
at the time of injury. Thus, she was not entitled to benefits
over the summer.
What is really behind the Court's misreading of N.J.S.A.
34:15-38 is its own policy determinations and not the actual
provisions of the Act. That is evident in the majority's use of
the hypothetical at-will employee whose employer claims it was
going to lay off the employee. See ante at __ (slip op. at 9).
The majority allows its sympathy for that employee to distort the
statute in Outland's case -- one that does not involve an at-will
employee nor an indefinite period of employment. Furthermore, in
the majority's hypothetical, if the employer lays off the
employee only because the employee sought worker's compensation
benefits, the employer would be unlawfully firing the employee in
retaliation for seeking those benefits. Firing an employee under
those circumstances is clearly forbidden by the Act. N.J.S.A.
34:15-39.1; Lally v. Copygraphics,
85 N.J. 668 (1981).
The crux of the Court's holding is its mistaken reading into
the Act a provision in favor of seasonal employees. Were we to
have a provision in our Workers Compensation Act providing for a
calculation of wages based on the employee's annual earnings (as
does Arizona, which is why the resolution of the two Arizona
cases cited by the majority, see ante at __ (slip op. at 10),
differs from the conclusion we reach), we might agree with the
majority's conclusion. However, New Jersey's Workers
Compensation Act does not annualize wages in that context.
Rather, it squarely answers the question at hand in its provision
that wages are "the money rate at which the service rendered is
recompensed under the contract of hiring in force at the time of
the accident." N.J.S.A. 34:15-37. Because of that difference,
neither Arizona law nor the Longshore and Harbor Workers'
Compensation Act, see ante at __ (slip op. at 10), is relevant in
determining how to compensate a teacher injured in New Jersey.
The Court also cites as a reason for its conclusion that "to
deny payments based on lost summer employment would frustrate the
purpose of the workers' compensation system." Ante at __ (slip
op. at 12-13). The Court finds the purpose of the system in
Maver v. Dwelling Managers Co.,
34 N.J. 440 (1961). According to
the Court, that case shows that an employee should be compensated
for his "full-time" earning capacity. But the Court ignores the
holding of Maver, which is that unless the "employee's full time
is jointly engaged by a number of employers," 34 N.J. at 444, the
Act "singles out the employment of injury and requires a finding
of the weekly wage with reference to it alone," id. at 446; see
also Tomarchio v. Township of Greenwich,
75 N.J. 62, 78 (1977)
(reaffirming Maver even though "[t]his view is apparently unique
to New Jersey"). The Court's selective citation to the case
ignores the part of Maver relevant to Outland's situation -- that
discussing temporary benefits as they relate to an injured worker
with multiple employers. That section clearly limits the rate of
temporary disability benefits to compensating for the loss of
wages of the employment at the time of injury and not other
employments. The Court's opinion here does not address at all
this holding in Maver.
The Court finally notes that accepting the school board's
reasoning would make teachers "second-class citizens" under the
Act. Ante at __ (slip op. at 13). Because teachers are covered
only by the general provision in N.J.S.A. 34:15-37 that wages are
determined by the "contract of hiring in force at the time of the
accident," the more specific provisions in N.J.S.A. 34:15-37 for
hourly, daily, or weekly employees are inapplicable to Outland's
case. Using those provisions to conclude that "Outland should be
compensated for the loss of two months of earning capacity," ante
at __ (slip op. at 13) (emphasis added), is an open act of
judicial re-writing of a statute.
The Court's opinion in this case opens a Pandora's box of policy issues. It embraces the worthwhile goal of providing all seasonal employees the benefits designed to overcome the economic losses attributable to temporary disability. It does so, however, oblivious to the Legislature's stronger prerogatives and greater understanding in respect of whether and how seasonal employees should be protected. It is for the Legislature to decide what constitutes seasonal employment, the significance of the source of wages, the appropriate rates of payment, the accommodation of dual and successive employments, and the implications of full-time employment that is paid on a partial-year basis. The entitlement of teachers as seasonal employees is a difficult and complex subject with consequences for public education that should not be resolved cavalierly by the judiciary.
One can hardly assume the Legislature will believe that the Court in this opinion is only explaining and confirming an existing legislative plan. Each year, New Jersey spends roughly 57" of its school budget on salaries and benefits. Nick Chiles, A Lesson in School Spending, Newark Star Ledger, Mar. 23, 1998, at 1. The Court betrays fiscal indifference when it compels an increase in those expenditures based on misreadings of clear statutes and adventurous forays into public policy regarding what is right for hypothetical average seasonal employees, who dramatically differ from your prototypical teacher. The
Legislature may well believe that teachers are not to be treated
as other seasonal employees and that their interests are
generally well-protected and secured. Especially in light of the
ongoing school funding controversy, we should be extremely wary
of ordering the schools to spend more money to compensate
teachers for summer job loss when the Legislature has not so
mandated. Whether it is sound public policy is not for us to
say.
I would, therefore, affirm the decision of the Appellate
Division and let stand the ruling that Outland is not entitled to
temporary disability benefits over the summer months.
CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI join in this
opinion.
NO. A-48 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
MONA J. OUTLAND,
Petitioner-Appellant,
v.
MONMOUTH-OCEAN EDUCATION SERVICE
COMMISSION,
Respondent-Respondent.
DECIDED July 1, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Handler
Footnote: 1 Of course, the teacher is also entitled to the 2/12 per month deferred between September and April. Footnote: 2 T/D = temporary disability in workers' compensation calculated at 70" wages up to maximum of $516, here 70" of $692 per week or $484 per week. In calculating the temporary disability benefit, we have used rough estimates and not attempted to make exact calculations of what the temporary disability awards would be in compensation. Footnote: 3 SLA = statutory benefit under sick leave act. Footnote: 4 Note that the temporary disability payments paid over the summer have been calculated at 70" of the wages called for by the teacher's contract with the employer. That would have been the "contract in force at the time of the injury." N.J.S.A. 34:15-37. Footnote: 5 It is worth noting that in the over eighty-five years of the Act we have not had any reported cases involving controversies over the status of seasonal workers under the Act.