New case law on Temporary Disability benefits

On March 30, 2007 the Appellate Division decided Ventura v. Reliable Wood Products, A-4554-05T1 (Mar. 30, 2007)(Not Approved for Publication). The cases presented a novel issue: an undocumented worker alleged that his daily weekly wages were $500 per week. The employer alleged that his wage was $6.15 per hour.

On November 22, 2005, the very first day he worked for the respondent, the claimant was injured (his right foot was amputated). The petitioner was loitering in the Bravo Supermarket parking lot in Orange, looking for work when he was approached by three employee of Reliable. The claimant reported to work at the Reliable premises.

According to the petitioner, he was to be paid “$100 per day” to cut wood with a power saw. According to the employer’s representative, the claimant was told (in the Supermarket parking lot) to get into a van. The claimant was allegedly told that he would find out his daily wage when he got to the worksite.

The Judge of Compensation found the issue to be “primarily one of credibility.” Finding that the respondent’s witnesses were “less than credible” due to conflicting testimony, the Judge found that the wage was $100 per day.

The decision of the Judge of Compensation was upheld by the Appellate Division. In light of the fact that the employer was unable to produce documentation of the wage to be paid, and in light of the lack of credibility of the respondent’s witnesses, the Appellate Division gave credit to the decision of the judge of compensation who was able to gauge the demeanor of the witnesses.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice 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 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com