Calero v. Target Corp.
| Decision Date | 10 June 2020 |
| Docket Number | DOCKET NO. A-2650-18T3 |
| Parties | ESPERANZA CALERO, Petitioner-Respondent, v. TARGET CORPORATION, Respondent-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Rothstadt and Moynihan.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2013-028255.
Cipriani & Werner, PC, attorneys for appellant (Edward C. Kein, on the briefs).
Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser, PA, attorneys for respondent (Allan L. Lockspeiser, on the brief).
Target Corporation appeals from the January 16, 2019 order entered by a judge of compensation amending an August 23, 2016 order approving a settlement. After granting Target's former employee, Esperanza Calero's motion for reconsideration in July 2018, the judge held a hearing and then entered the 2019 order reconstructing Calero's wages and award that were established in the 2016 order. On appeal, Target contends, for the first time, that "doctrines concerning fairness and public policy require" that this action be dismissed.1 In the alternative, it argues that the 2019 order "was erroneous and . . . contrary to statutory and case law" and "should be reversed." We affirm.
The facts gleaned from the record are summarized as follows. Calero sustained a work-related injury while employed by Target. Thereafter, the parties initially filed contesting pleadings, but on August 24, 2016, they settled Calero's claim. The order approving settlement established a twenty-five percent partial disability, a stipulated weekly wage of $276.17, and apermanency rate not to exceed $193.32. The settlement was placed on the record before the judge of compensation, and an order approving settlement was signed by the judge and both parties.
In December 2016, after securing new counsel, Calero filed a motion for reconsideration of the order. In her motion, Calero argued that her wages were calculated incorrectly at the time the earlier order was entered. In support of her application, Calero submitted wage statements demonstrating her wages were higher than contemplated in the order approving settlement. Citing to Katsoris v. S. Jersey Publ'g Co., 131 N.J. 535 (1993), she contended that the wages should have been reconstructed based upon full time wages because she suffered a permanent injury while working, which prevented her from continuing to work full time. Calero specifically sought the vacating of the earlier order and asked that her wages be reconstructed based on a forty-hour week.
At an initial hearing held on July 11, 2018, the judge of compensation granted Calero's application. In his oral decision placed on the record that day, the judge turned to Rule 4:50-1 to consider whether Calero established a basis for relief from the earlier order. The judge stated that he viewed the application to have been filed under subsection (a) of the Rule "which involves mistake, inadvertent surprise or excusable neglect." He framed the issue as whetherCalero's attorney at the time made a mistake that would warrant vacating the order under consideration. He also considered Calero's application under subsection (f), which he described "as the catchall phrase" that would justify granting "relief from the operation of the judgment or order."
The judge concluded that it appeared "that there [was] some basis that there's a colorable argument to be made with respect to wage reconstruction." The judge turned to Target's opposition and concluded it would suffer no prejudice because he was not going to "reopen the aspect of the percentage of disability" issue and by doing so there would be no need to schedule any "additional exams." The judge found that under the circumstances relief was warranted under both subsections (a) and (f). The judge limited the issue to "whether or not the wages were accurately calculated at the time the settlement was entered." He only vacated the part of the order approving settlement with respect to the "weekly wages."
The judge of compensation conducted a hearing on September 12, 2018, for the purpose of taking testimony on the issue of wage reconstruction. At the beginning of the hearing, the judge made clear again that the matter was limited to whether "there should be a wage reconstruction" and not to address "permanency or any other issue related to [the] matter."
At the hearing, Calero testified to her job with Target, noting that she was originally hired on a full-time basis. She explained that before the accident, although she was hired to work full time, she "work[ed] the hours that were posted" for her. It was only after the accident that she was no longer able to work. Although she attempted to work some hours after being injured, eventually she could not, and her hours were continually reduced until there was no longer any work for her to perform. Since then she has never been employed.
Calero acknowledged on cross-examination that although she considered herself a full-time employee, before the accident her hours varied. Sometimes she worked more than forty hours, while other times she barely worked more than twenty hours per week. She attributed the fluctuations to her filling in when other employees could not appear for work as scheduled. She confirmed that "most of the time" when she worked, it was more than forty hours. In response to further questioning by the judge of compensation, she confirmed that she was always available to work for forty hours per week.
After Calero rested, Target did not produce any evidence at the hearing. It offered neither testimony nor documents in response to any of Calero's contentions. After allowing time for additional briefing, the judge ofcompensation issued his oral decision on January 16, 2019, reconstructing Calero's wages.
In his decision, the judge based his findings of fact on Calero's uncontroverted testimony and found that she was a full-time hourly employee, hired at the rate of approximately $11.50 per hour. He determined that because of her injuries, initially she could no longer work full-time and after a few months "stopped working completely," and thereafter was never employed again.
The judge then addressed the applicable law. Turning to N.J.S.A. 34:15-37 that defined wages, he quoted from the statute's description of how the daily wage is calculated for hourly wage employees. He then addressed the holding in Katsoris and identified the question before him as whether "there [was] credible evidence in this case of a permanent impact on future full-time wage-earning capacity in order to reconstruct . . . [Calero's] wages." Applying the controlling law, he concluded that he could not "think of a more fitting scenario, . . . given the facts of this case that calls out for a wage reconstruction." He granted the motion and reconstructed Calero's wages to reflect a weekly wage of $460 per week based upon a forty-hour work week at $11.50 per hour.He noted that that would result "in a gross permanency award of $67,620." This appeal followed.
Our scope of review of a workers compensation decision is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility," Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), and "due regard also to the agency's expertise." McGory v. SLS Landscaping, ___ N.J. Super. ___, ___ (App. Div. 2020) (slip op. at 17) (quoting Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014)); see also Renner v. AT&T, 218 N.J. 435, 448 (2014) ().
We defer to the judge of compensation's factual findings "unless they are 'manifestly unsupported by or inconsistent with competent[,] relevant and reasonably credible evidence as to offend the interests of justice.'" McGory, ___ N.J. Super. ___ (slip op. at 18) (quoting Lindquist, 175 N.J. at 262). Therefore, even if it may be inclined to do so, an appellate court "may not substitute [its] own factfinding for that of the [j]udge of [c]ompensation." Lombardo v. Revlon,Inc., 328 N.J. Super 484, 488 (App. Div. 2000). "However, 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Renner, 218 N.J. at 448 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Our review is also guided by the principles underlying the Workers Compensation Act, N.J.S.A. 34:15-1 to -146. The Act provides an exclusive remedy for injuries sustained in an "accident arising out of and in the course of employment." N.J.S.A. 34:15-7. Our State's comprehensive statutory scheme of workers compensation coverage "for the compensation of injured workers 'is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished.'" Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 42 (2008) (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974)). "We have long recognized that [the Act] is remedial legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Kocamowski v. Township of Bridgewater, 237 N.J. 3, 10 (2019) (quoting Estate of Kotsovska v. Liebman, 221 N.J. 568, 584 (2015)).
It is an "axiomatic principle that the language of the [Act] must be liberally construed in favor of the...
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