In the matter of Catrambone v. Bally's Park Place/Second Injury Fund, A-3589-13T4 (2015), the Appellate Division of the Superior Court rendered an unpublished decision on whether an employee, who was awarded total permanent disability in the last compensable accident, primarily involving the left shoulder, can reopen an earlier award for his lower back to obtain additional benefits.
In this case, the employee suffered a lower back injury on March 18, 2006, while working for Bally's Park Place. A settlement was entered on May 15, 2008, awarding the employee 27.5 percent permanent partial disability for his back injury, with a corresponding credit of 7.5 percent for the pre-existing conditions. On March 24, 2009, the employee filed an Application to Modify the award of May 15, 2008, based upon his condition worsening. Additionally, on June 14, 2008, the employee suffered a subsequent work injury to his neck, left shoulder and left wrist. On March 16, 2010, the employee filed a Second Injury Fund Application alleging that based upon the injury suffered to his left shoulder, in combination with his pre-existing condition, he is totally and permanently disabled.
On November 29, 2010, an Order Approving Settlement was entered increasing his back injury of May 2008 from 27.5 percent to 30 percent of partial total, with a corresponding credit for the previous award. Additionally, on November 29, 2010, an award for permanent total disability was entered, adjudicating the employee 100 percent totally and permanently disabled as a result of his left shoulder injury in 2008, in combination with this pre-existing condition. The Totality Order required his employer to pay the first 33 1/3 percent of the total award, with the Second Injury Fund paying the remaining 66 2/3 percent.
It is important to note that since both the Reopener and the Totality Award were entered on the same day, both the Respondent and Second Injury Fund were in attendance at the time that the Reopener Application was settled. Specifically, neither the Respondent nor the Fund objected when the Judge instructed the employee that he had the right to reopen the first Claim Petition within two years, if his back condition worsened.
On November 14, 2011, the employee filed a timely Application to modify the November 29, 2010, award with respect to the compensable back condition. In opposition, the employer argued that the employee received an award of total permanent disability and cannot receive additional benefits beyond what he has been paid. At the conclusion of the ensuing trial, the Judge of Compensation determined that the employee's back condition had increased to 35 percent and entered an Order accordingly. Additionally, in calculating the payments, the Judge took into consideration that the Totality Order fixed the date of totality of February 1, 2009, resulting in an overlap of 34 1/7 weeks, when the Fund made payment from the Totality Award and additional payments would be made for the increase in the back injury. As such, the Trial Judge ordered that these payments be credited against the permanent total disability award, resulting in a credit for the Second Injury Fund. As for the employer, the Judge calculated that the increase in disability resulted in an increase in the rate of payment of $96.60 and thus, the employer owed the employee 150 1/7 weeks at the increased rate of payments, totaling $16,054.
An appeal was filed and the Appellate Court determined that while the employee has the right to file an Application for Modification on the basis that the compensable condition has worsened, an award of 100 percent total permanent disability should preclude any further award for any increase in the effects of the same injury. Since the employee in this case was seeking a modification for a pre-existing injury, not the injury that afforded him an award of total disability, the increase awarded by the Trial Judge did not constitute a payment in excess of 100 percent total permanent disability.
The Appellate Court concluded that the Trial Judge properly established the Fund's entitlement to a credit for any payments that overlapped payment of totality. Additionally, the payment to the employee for the increase in rate payable by virtue of the increase in permanent disability on the back was also proper as it did not affect the underlying totality award.
Comment: This case, clearly establishes that a totality award does not always preclude the employee from filing a Reopener, so long as the Reopener is not on the injury that resulted in the finding of totality. Thus, an employer cannot defend an Application for Review of Modification when a Totality Award has been entered, on the basis that the employee has already been adjudicated 100 percent total and permanent disability.
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