Bogda v. Chevrolet-Bloomfield Division, General Motors Corp., CHEVROLET-BLOOMFIELD

• Decision Date: 01 June 1950
• Docket Number: CHEVROLET-BLOOMFIELD,No. A--155,A--155
• Citation: 73 A.2d 735,8 N.J.Super. 172
• Parties: BOGDA v.DIVISION, GENERAL MOTORS CORPORATION.
• Court: New Jersey Superior Court — Appellate Division

Page 172

8 N.J.Super. 172

73 A.2d 735

BOGDA v. CHEVROLET-BLOOMFIELD DIVISION, GENERAL MOTORS CORPORATION.

No. A--155.

Superior Court of New Jersey Appellate Division.

Argued May 1, 1950.

Decided June 1, 1950.

Ira D. Dorian, Cranford, argued the cause for the plaintiff-appellant (Greenstone & Greenstone, Newark, attorneys).

Nicholas Conover English, Newark, argued the cause for the defendant-respondent (McCarter, English & Studer, Newark, attorneys).

Before Judges COLIE, EASTWOOD and JAYNE.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Plaintiff appeals from a determination of the Division of Employment Security, department of Labor and Industry, denying temporary disability benefits under a private insurance plan as authorized by P.L.1948, c. 110, p. 590, sec. 8, R.S. 43:21--32, N.J.S.A.

To clearly understand the issue, it is necessary to elaborate somewhat on the facts. Plaintiff was initially employed by defendant on July 16, 1943 as a packer and continued in that employment until December 3, 1943, when he was laid off; he was reemployed on April 23, 1945, as a material handler, in which capacity he worked until January 17, 1949, when he was transferred to the classification of a 'unitizer', considered to be 'light work'; during the course of a routine medical examination by the plant physician on December 29, 1948, it was discovered that plaintiff had an incomplete left inguinal hernia. After working approximately one month as a unitizer, plaintiff applied for and was granted a leave of absence to undergo a hernial operation; for the period from February 12, 1949 to April 5, 1949, he received temporary disability benefits; upon his return, plaintiff resumed his work as a unitizer from April 5, 1949 to June 3, 1949, when, together with other employees, he was laid off due to lack of work. He applied for and received unemployment compensation benefits until July 21, 1949. These benefits were terminated when he filed a claim for temporary disability benefits under the employer's private insurance plan for the period commencing June 3, 1949. The employer's insurer denied plaintiff's claim for payment of temporary disability benefits on the ground that he was able to perform the duties of his employment. Subsequently, plaintiff instituted an action for the payment of temporary disability benefits for the period in question, claiming that during that period he was convalescing from the hernia operation and was not fit to perform the duties 'of his employment' as a material handler until August 15, 1949. The hearing officer denied his claim on the ground that 'the claimant, not being under the care of a legally licensed physician during the period of his disability, is not entitled to disability benefits from June 3 to August 15, 1949.' This appeal ensued.

This issue raises three questions for our determination, viz.: (1) was the plaintiff's unemployment caused by lack of work; (2) was it caused by a non-occupational sickness 'resulting in his total inability to perform the duties of his employment'; and (3) assuming his unemployment was caused by a non-occupational illness, did plaintiff comply with the pertinent provision of the statute P.L.1948, c. 110, p. 595, sec. 15, R.S. 43:21--39(b), N.J.S.A., and insurer's policy, by establishing that he was 'under the care of a legally licensed physician.'

This is a case of novel impression. Our research fails to reveal any decisions by our courts or the States of Rhode Island, California or New York, where temporary disability benefits plans are in effect, but which differ somewhat from the provisions of our statute.

The Temporary Disability Benefits Law, P.L.1948, c. 110, p. 586, R.S. 43:21--25 et seq., N.J.S.A., was enacted under 'The public policy of this State, already established, is to protect employees against the suffering and hardship generally caused by involuntary unemployment. But the unemployment compensation law provides benefit payments to replace wage loss caused by involuntary unemployment only so long as an individual is 'able to work, and is available for work,' and fails to provide any protection against wage loss suffered because of inability to perform the duties of a job interrupted by illness. Nor is there any other comprehensive and systematic provision for the protection of working people against loss of earnings due to non-occupational sickness or accident. * * * to fill the gap in existing provisions for protection against the loss of earnings caused by involuntary unemployment, by extending such protection to meet the hazard of earnings loss due to inability to work caused by nonoccupational sickness or accident.' P.L.1948, p. 586, sec. 2, R.S. 43:21--26, N.J.S.A.

P.L.1948, p. 588, sec. 5, R.S. 43:21--29, N.J.S.A., defines compensable disability as follows: 'Disability shall be compensable subject to the limitations of this act, where a covered individual suffers any accident or sickness not arising out of and in the course of his employment or if so arising not compensable under the workmen's compensation law (Title 34 of the Revised Statutes), and resulting in his total inability to perform the duties of his employment.'

Under Section 15, R.S. 43:21--39, N.J.S.A., '* * * no benefits shall be payable under the State plan to any person * * * (b) for any period during which a claimant is not under the care of a legally licensed physician * * *.' The employer's insurance policy uses the word 'treatment' instead of 'care'.

I.

In determining the first question hereinabove posed, our examination of the record reveals that claimant was discharged because of lack of work on June 3, 1949, not because of a non-occupational illness that resulted 'in his total inability to perform the duties of his employment.' In fact, on June 10, 1949, the claimant filed a claim for unemployment compensation, which the unemployment agency refused to process until the employer filed a form stating that the cause of separation from employment was lack of work. His claim was approved and plaintiff received unemployment compensation until July 21st. Plaintiff contends that he originally asked for temporary disability benefits but was persuaded by the employer's representative that his claim was properly one for unemployment benefits. It seems clear from the evidence that the only reason for placing the employee 'on sick leave of absence' on the company's records was for the express purpose of retaining certain pension and seniority rights to reemployment. The resulting change from a claim for unemployment compensation benefits to temporary disability benefits arose out of negotiations between representatives of the employee's union and the employer. The disability benefits statute cannot be circumvented merely by an agreement of the employer and employee to grant a 'sick leave of absence' when the facts do not support it. On the contrary, the proofs clearly indicate that plaintiff was entitled rather to unemployment benefits. The appeal might well be disposed of on this ground. However, we proceed to a consideration of the other questions.

II.

The plaintiff contends that he is entitled to disability benefits on the basis of his convalescence or recuperation from the hernia operation; that his return to work on April 5, 1949, as a unitizer until that work ceased should not prevent him from reverting to his sick status and receiving temporary disability benefits because of his total inability to perform the duties of 'his employment', viz.: a material handler; that the discovery of the hernia caused his transfer from the heavier work to that of a unitizer. The plaintiff argues that the proper construction of the words 'his employment' in the statute are referable to his employment as a 'material handler'; and that when he was laid off on June 3, 1949, he had not as yet sufficiently recovered from his hernial operation to resume the duties of 'his employment', a material handler. However, the record does not support plaintiff's contention. There is no evidence to substantiate his contention that the reason his employment was changed from that of a material handler to that of a unitizer was because of the discovery of the hernia. All the record reveals is that this condition was discovered by a routine examination by the plant physician on December 29, 1948; that, notwithstanding the condition, he continued to work as a material handler until January 17, 1949, when his classification was changed to unitizer. He worked at the latter classification until February 12th, when he was given a leave of absence for a hernial operation; that when he recovered sufficiently to return to work on April 5, 1949, he resumed his employment as a unitizer; that he did that work until June 3d, when he was laid off because of lack of work. During the entire period from December 29, 1948 until June 3, 1949, there is no evidence that plaintiff contended that 'his employment' was that of a material handler. It was only after he was laid off on June 3, 1949, after he had first applied for and received unemployment compensation benefits, that he filed any claim for temporary disability benefits on the ground that he was still suffering from the effects of his hernial operation and, therefore, unable to perform his work as a material handler. The record is clear that the plaintiff's employment at the time that he obtained his first sick leave of absence was that of a unitizer and there is no merit in his contention that it was that of a material handler.

Plaintiff insists that the period for which he now claims disability benefits represents a part of his convalescence from the hernial operation. This contention does not appear to be supported by the record. On April 5, 1949, when plaintiff returned to work after his operation, he was examined by the plant physician and found to be physically able to and did resume his full-time work as a unitizer. There is...