Katsoris v. South Jersey Pub. Co.

• Decision Date: 10 March 1993
• Citation: 131 N.J. 535,622 A.2d 219
• Parties: Arlene KATSORIS, Petitioner-Appellant, v. SOUTH JERSEY PUBLISHING CO., t/a The Atlantic City Press, Respondent-Respondent.
• Court: New Jersey Supreme Court

Page 535

131 N.J. 535

622 A.2d 219

Arlene KATSORIS, Petitioner-Appellant, v. SOUTH JERSEY PUBLISHING CO., t/a The Atlantic City Press Respondent-Respondent.

Supreme Court of New Jersey.

Argued Nov. 9, 1992.

Decided March 10, 1993.

Lawrence A. Mintz, Atlantic City, for petitioner-appellant (Goldenberg, Mackler & Sayegh, attorneys).

Alfred H. Katzman, Atlantic City, for respondent-respondent (Horn, Kaplan, Goldberg, Gorney & Daniels, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

This is a workers' compensation case. Petitioner was employed on a part-time basis, working in that employment substantially less than a so-called normal, forty-hour week. She also held separate, full-time employment. Petitioner sustained compensable injuries arising out of her part-time employment when she was involved in an automobile accident.

Although the accident arose out of her part-time employment, the Workers' Compensation Court determined that petitioner's compensation should be based on her actual wages earned in her part-time employment but the compensation award should be calculated on the basis of a full-time, forty-hour week. The Appellate Division reversed. It held that petitioner was to be compensated according to the wages earned in her part-time employment but only on the basis of her actual work week. That resulted in a substantially reduced award.

This Court granted petitioner's petition for certification. 130 N.J. 9, 611 A.2d 649 (1992).

I

Petitioner, Arlene Katsoris, then fifty-two, was employed part-time by respondent, South Jersey Publishing Company (Company), as a newspaper carrier. She delivered the Atlantic City Press newspaper seven days a week. Katsoris contemporaneously held another job as a secretary on a full-time basis. On May 13, 1987, a truck collided with petitioner's car while she was delivering papers. She suffered fractures of the arm shoulder blade, knee cap, and pubic bone; multiple fractures of the leg; and a cerebral concussion. Petitioner's injuries resulted in bilateral hearing loss, post-traumatic anxiety, and neurosis. Katsoris has been unable to return to her work as a newspaper carrier. After six months of recovery, however, she returned to her full-time position as a secretary. Because of her injuries, Katsoris experienced some pain and difficulty in carrying out her duties at her full-time job. However, the record does not indicate that her injuries constituted a disability that has prevented her from performing her full-time employment duties or in any way affected her compensation in that employment.

Katsoris filed a petition for workers' compensation benefits. The Company eventually conceded that her injuries arose during the course of employment and that petitioner suffered a fifty-five percent permanent partial disability.

The record discloses that petitioner devoted three hours each morning to newspaper delivery. She spent the first half-hour of every day securing each newspaper with an elastic band and covering it with a plastic bag. During the following two and one-half hours Katsoris delivered the papers to customers on a list supplied to her by respondent. The compensation court determined that Katsoris had worked seventeen-and-one-half hours per week actually delivering papers. The court, however, used a reconstructed work week of forty hours to determine petitioner's compensation award. The court found that Katsoris had earned $106.80 each week for the six days in which she had delivered the daily newspaper, and $46 for each Sunday delivery. Thus, petitioner's actual weekly wages were $152.80. The court divided petitioner's actual gross weekly revenue by her actual hours worked, determining that petitioner had been paid at an hourly rate of $8.73. The court then applied that rate to the reconstructed full or forty-hour work week. According to that calculation, petitioner would have earned $349.25 ¹ for a full week of work with the Company. Because under the statutory scheme permanently-injured employees are entitled to seventy percent of their weekly wage, up to a fixed maximum, the court found that seventy percent of petitioner's reconstructed wage was $244.44. That was sufficient to qualify petitioner for the $221 maximum weekly rate of compensation allowed to an employee who has suffered a fifty-five percent, permanent, partial disability. The compensation court thus awarded petitioner benefits for 330 weeks at a rate of $221, or $72,930.

The Appellate Division determined that petitioner should be compensated at her hourly rate for the "customary number of hours" and for the "customary number of days" constituting an ordinary week "in the character of the work involved." Accordingly, the Appellate Division found that petitioner had worked twenty-one hours a week. (The compensation court considered only the two-and-one-half hours per day that petitioner had actually delivered papers and concluded that she had worked a total of seventeen-and-one-half hours. The Appellate Division, however, included in its calculation not only petitioner's newspaper-delivery time but also the one-half hour per day that she had spent wrapping each paper in its delivery bag.) The Appellate Division determined petitioner's hourly wage to be $7.27 by dividing her actual weekly wage of $152.80 by twenty-one. It multiplied the hourly wage rate by three, which it determined to be the customary number of hours constituting a newspaper carrier's ordinary day, to reach a daily wage of $21.81. The court then calculated petitioner's weekly wage by multiplying the daily wage, $21.81, by seven, which it found to be the customary number of working days constituting a newspaper carrier's ordinary week. Accordingly, the court found $152.87 was the customary, weekly wage for the character of the work involved. The court awarded Katsoris benefits amounting to seventy percent of $152.87, or $106.97, for 330 weeks. Petitioner's recovery was thereby reduced to $35,300.10.

II

The use of reconstructed work weeks is not a novel method for calculating compensation benefits for workers injured in part-time employment. In Torres v. Trenton Times Newspaper, 64 N.J. 458, 317 A.2d 361 (1974), a minor was injured while delivering newspapers in the course of his part-time job. As a result of the accident, Torres suffered a fifteen-percent permanent loss of the use of his right arm. Id. at 459, 317 A.2d 361. At the time of his injury, he earned $7.75 per week for seven hours of work. This Court held that benefits for Torres should be calculated on the basis of a reconstructed forty-hour work week, using an hourly rate reflecting his actual hourly income. Id. at 462, 317 A.2d 361. The Court acknowledged that the workers' compensation statute had "no specific provision for a news[carrier] or other minor who works only a few hours a week in a part-time job and suffers partial or total disability as a result of a work-connected accident." Id. at 461, 317 A.2d 361. However, it was "mindful that the Work[ers'] Compensation Act is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Ibid.

The compensation court expressly found that the Torres decision constituted authority to use a reconstructed work week to calculate the compensation award of petitioner, though that argument was not raised by either party. However, the Appellate Division determined that a reconstructed work week, which was approved by Torres, could not be used because its use had been effectively overruled by statute, namely, the Workers' Compensation Act of 1979. L.1979, c. 283; N.J.S.A. 34:15-1 to -128.

The 1979 Workers' Compensation Act overhauled the statutory workers' compensation scheme. One significant alteration related to the compensation benefits for part-time employees. L.1979, c. 283, § 37; N.J.S.A. 34:15-37. That amendment changed both the definition of a part-time employee and the calculation of compensation awards of such employees. Under the amendment the definition of part-time employment was changed from an employment that did not exceed five days per week to an employment measured by the number of working days that are "customary" in an "ordinary week" for the "character of the work involved." ² Ibid. An employee is "part time" if he or she works fewer than that "customary number of working days." Ibid. Thus, the Appellate Division read the language of the amendment to provide that compensation for part-time employees would consist simply of their hourly rate of pay multiplied by the number of hours in their regular work week. In other words, the Appellate Division believed that the amendment had removed the reconstructed work week as a basis for the calculation of compensation awards of all part-time employees.

In concluding that the regular hours of a part-time employee constituted the outer limits of a compensation award, the Appellate Division perceived no distinction between part-time employees who suffer temporary disabilities and those who suffer permanent disabilities. It thus ascribed no significance to the reference in the amendment to N.J.S.A. 34:15-12a, which deals with compensation for temporarily-disabled employees. However, it appears that that reference was intended to link the determination of the work week for part-time employment as defined under the amended standard only to the calculation of compensation benefits for temporary disability.

The Appellate Division in McMonegal v. E & B Management Corp., 214 N.J.Super. 481, 520 A.2d 406 (1986), expressed the view that the amendment had eliminated the use of the reconstructed work week only with respect to the compensation of temporarily-disabled part-time employees, not those permanently-disabled. The court reasoned that through enactment of the amendment, weekly

wage reconstruction was expressly outlawed for calculation of temporary disability payments...