Reconstructing wages in New Jersey – new decision.

In the case of Calle v. DeJana Industries, decided October 7, 2011, the New Jersey Appellate Division found that “reconstructing” wages for a part-time seasonal worker to an earning level equivalent to a full-time employee was appropriate based on the claimant’s testimony that he was an “off the books” worker elsewhere. The petitioner testified that when not working part-time working for the employer he “would stand on a corner waiting for work” as a day laborer. The Judge of Compensation considered this testimony as proof that the claimant was disabled from all full-time employment even though the claimant was only a part-time worker for the defending employer and did not produce any proofs of the alleged full-time work elsewhere. By making this determination, the claimant’s wages were “reconstructed” to a higher rate, entitling him to a much larger award.

When wages are “reconstructed.”

The first step in determining the appropriate rate of compensation is to determine “wages” as defined in N.J.S.A. 34:15-37. The rate of compensation may not exceed 70% of petitioner’s wages at the time of the accident subject to the maximum and minimum rate in effect for the year the accident occurred.

In practice, claims adjusters should obtain “26-week wage statements” from insured/employers so that an average wage can be computed. Why 26 weeks? The Workers’ Compensation Act (N.J.S.A. 34:15-37) uses “six months” as the appropriate look-back period for wages.

The New Jersey Supreme Court in Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993) instructed that reconstruction of wages is appropriate when necessary to compensate the worker for loss of earning capacity, i.e., diminution of future earning power. The ‘loss of earning capacity’ includes a loss of “potential for full employment.” Where an employee, who is permanently disabled due to an injury on a part-time job, also has a full-time job, use of a “reconstructed” work week is appropriate if there has been an impact on the employee’s ability to return to a full-time job. (Citing Mahoney v. Nitroform, 20 N.J. 499 (1956). By contrast, where a worker with a part-time and full-time employment is permanently partially disabled from the part-time employment but able to return to the full-time employment, reconstruction of the work week as if the part-time employment were full time employment is improper. (Katsoris, 131 N.J. at 548).

In cases involving part-time employees with no full-time work, a judge of compensation must employ the principles of “fairness and equity” in determining if the circumstances warrant reconstruction of a part-time worker’s wages. However, the Appeal court drew a distinction, as did prior cases, for part-time workers – concluding that reconstruction is appropriate when the “permanently disabling accident ‘prevents or interferes with later full-time employment.'” (Citing Engelbretson v. AM. Stores, 49 N.J. Super. 19 (App. Div. 1957) aff’d, 26 N.J. 106 (1958).

Determining out the ‘rate’ at which compensation should be paid is often the central issue in claims involving part-time workers. If a worker makes $100 a week as a part-timer, the permanent disability rate (the rate at which permanent disability benefits is paid) would be $70 per week. For an award of 25% of the hand (at the 2010 rates) a part-time worker earning $100 per week is due an award of $4,285. A full-time worker, earning wages exceeding $290 per week, would be due a “full” statutory award of $12,585.

There are many instances where a judge of compensation is persuaded to “reconstruct” a part-time wage into a full-time wage. This results in a much-higher award (in our example, $4,285 versus $12,585). The Judge of Compensation can be persuaded to “reconstruct” wages to a full-time rate because the law allows for wages of a part-time employee may be reconstructed for purposes of fixing the rate for permanent partial disability in accordance with N.J.S.A. 34:15-37 based upon “diminished future earning capacity.”

Case where wage reconstruction was rejected.

Another recent case which I’ve written about reached different conclusion regarding wage reconstruction. In Rose Gruzlovic v. Giovani’s Trattoria, A-1519-08T1 (App. Div. Decided April 15, 2010), the appeals court reviewed the decision of a Judge of Compensation who had “reconstructed” part-time wages of a cafeteria worker, resulting in an increased award. In Gruzlovic, the claimant was a 76-year-old woman who worked nine hours per week, earning $10.50 per hour (average weekly wage of $94.50). During the thirteen years the claimant worked for the employer, she did not have or seek additional part-time employment. After the accident at work, the claimant no longer worked, stating simply, “I thought I had my share [of work].”

The Judge of Compensation awarded Gruzlovic 25% permanent partial total benefits, and “reconstructed” the rate so that the claimant received the “full” statutory award ($30,420).

The Appeals Court overturned this ruling, and ruled that the claimant was only due an award only on her part-time work – which would equate to 150 weeks of compensation payable at $66.15 per week, totaling $9,922.50.

In Gruzlovic, the Judge of compensation was reversed and the wage reconstruction was remanded for further proceedings. The Judge was asked to find out whether the accident and resulting residual disability “had any impact on Gruzlovic’s capacity or inclination to work full-time as opposed to part-time. Based on the fact that the claimant had only worked one day per week for the thirteen years leading up to the accident, the Appellate Court stated ‘there is no basis for an inference” that Guzlovic would have pursued other full- or part-time jobs “but for” her partial disability. The Appeals Panel further stated “When an inference of a loss of potential full-time employment attributable to the accident is not available from the evidence presented, principles of fairness and equity developed to compensate for that lost potential are not implicated and reconstruction of wages is not appropriate.”

Applying Gruzlovic to Calle.

The Calle decision reveals a low threshold for the petitioner to prove a loss of future earning power – the claimant in Calle merely alleged that he was a day laborer working full time in other employments. The record does not reveal any wage information, pay stubs, or tax returns which were used to verify this claim. Nonetheless, the Appellate Division accepted the bald assertion of the injured worker that he sought full-time work in essentially unverifiable (and likely illegal) employments, and then relied on that low proof threshold to establish the petitioner’s right to reconstructed wages.

Case: Calle v. DeJana Industries, A-0797-10T2 (App. Div. decided October 7, 2011).

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com