Ripp v. Cnty. of Hudson

• Decision Date: 03 June 2022
• Docket Number: DOCKET NO. A-2972-20
• Citation: 472 N.J.Super. 600,277 A.3d 1071
• Parties: Louis RIPP, Petitioner-Respondent, v. COUNTY OF HUDSON, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

472 N.J.Super. 600

277 A.3d 1071

Louis RIPP, Petitioner-Respondent,

v.COUNTY OF HUDSON, Respondent-Appellant.

DOCKET NO. A-2972-20

Superior Court of New Jersey, Appellate Division.

Argued May 2, 2022

Decided June 3, 2022

Cindy Nan Vogelman argued the cause for appellant (Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy Nan Vogelman, Secaucus, of counsel and on the briefs; Priscilla E. Savage, Secaucus, on the briefs).

Evan L. Goldman argued the cause for respondent (Goldman Davis Krumholz & Dillon, PC, attorneys; Evan L. Goldman, Hackensack, on the brief).

Before Judges Messano, Enright, and Marczyk.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Louis Ripp worked for the County of Hudson (the County) as an assistant chief engineer/boiler operator and injured his back in a workplace accident on February 11, 2013. Ripp filed a petition with the Division of Workers’ Compensation (the Division) in June 2013, seeking benefits under the Workers’ Compensation Act (the WCA), N.J.S.A. 34:15-1 to -142; the County filed an answer. Ripp received temporary disability benefits and medical benefits before both his medical expert and the County's medical expert declared Ripp was permanently disabled in 2016.

On January 26, 2021, the judge of workers’ compensation (JWC) entered an Order for Total Disability (Order) approving a settlement in the amount of $365,100. The Order stated Ripp was totally disabled as the result of a disc herniation and disc bulges, post-operatively, accompanied by radiculopathy

at several vertebral levels of his spine. It is undisputed that the County was to pay Ripp $173,480 within sixty days of the entry of the Order.¹

Ripp filed a motion to enforce the Order because the County had not made the required payments.² He sought simple interest on the settlement amount pursuant to N.J.S.A. 34:15-28, and, pursuant to N.J.S.A. 34:15-28.2(a), Ripp sought enforcement of the Order through "an additional assessment not to exceed 25% of the money due ... for unreasonable payment delay" and counsel fees. Ripp also moved for additional penalties for payment delay "not exceeding $5,000[ ] ... with proceeds ... paid into the Second Injury Fund," pursuant to N.J.S.A. 34:15-28.2(b).

If the County filed a formal answer to the motion, it is not in the record. Nevertheless, it is undisputed Ripp received full payment of the amount due him on April 12, 2021, sixteen days after the due date, although the County had not paid reimbursement of other expenses at that time. At oral argument on the motion before the JWC on May 11, 2021, the County offered the following excuses for the late payment: its third-party administrator failed to submit the payment request in time for the February "bill listing," delaying its approval until the March meeting, presumably, of the county commissioners; delay by the third-party administrator was the result of a "transfer[ ] [of the file] from one adjustor to another"; and because of the COVID-19 pandemic, payment to Ripp was briefly delayed.

In her oral decision, the JWC noted Ripp needed to successfully make enforcement motions to obtain temporary disability benefits. She recognized some delays were occasioned by the County being "a governmental entity," and, because it involved a total disability award, "an excess carrier [was] involved." The judge noted, "We first discussed voluntarily totaling Mr. Ripp in August 2019," but the County did not authorize settlement until January 2021.

The JWC noted Ripp was "without significant funding for quite a long time," and had "written to the [c]ourt on many, many occasions sharing over how long the process is of finalizing his case." She said Ripp was "anxious about money and the [c]ourt [was] very sensitive to all of that." The judge recognized the County's attorney "did everything in [his] power to ... tie this up with [his] client so this would be paid timely, yet [it] didn't do that."

Finding the County's explanation for delay in not paying the reimbursable expenses to Ripp was reasonable, the judge excluded those amounts from the 25% penalty she imposed on benefits due to Ripp. The judge's order required the County pay Ripp an additional $43,370 within sixty days pursuant to N.J.A.C. 12:235-3.16. The County appealed.

In the written amplification of her reasons, the judge reiterated that the County agreed in early 2019 that Ripp was totally disabled. The judge noted Ripp was receiving Social Security Disability benefits, and because "Social Security is notoriously slow," it delayed computation of Ripp's "average current earnings," necessary so the Order "could be effectuated." The JWC also recognized that given the size of the award, the County needed to involve its excess insurance carrier, which authority to settle was not provided until December 2020. The judge said she granted five adjournments between September 2020 and December 2020, recognizing the County was a governmental entity, an excess carrier was involved, and the pandemic was extant.

However, the JWC said this delay "was to the dismay of [Ripp]." She cited "several letters" from Ripp that she "shared with counsel," detailing his "emotional and financial distress" as a result of not working. The judge cited Ripp's "life[-]altering injury," lack of "wages for over four years," and his "disabled child," all of which left the JWC "very sympathetic to the ... stress this has caused [Ripp]." The JWC said the court had "bent over backwards to give the [County] the time to ‘get it[ ]s ducks in a row,’ " and it was "inconceivable" that payment was delayed. Finding the County's delay was "unreasonable," the JWC concluded it was appropriate to impose the maximum additional assessment of 25% to enforce the Order.

Before us, the County argues the JWC erred "in her expansive application of N.J.S.A. 34:15-28.2," and, additionally, she abused her discretion in "imposing a manifestly excessive assessment under the [c]ircumstances." We agree, and therefore reverse and remand for further proceedings.

I.

Our review of decisions from the workers’ compensation court are decidedly deferential. See, e.g., Hager v. M&K Const., 246 N.J. 1, 18, 247 A.3d 864 (2021) (noting appellate review is "limited to whether the findings could have been reached on sufficient credible evidence present in the record." (quoting Hersh v. Cnty. of Morris, 217 N.J. 236, 242, 86 A.3d 140 (2014) )). This deferential standard recognizes "the compensation court's expertise and the valuable opportunity it has had in hearing live testimony." Ibid. Here, of course, the parties settled the petition and agreed Ripp was totally disabled from the workplace injury.

In the first instance, this appeal raises certain legal issues and questions of statutory interpretation; as to those, we owe no deference to the JWC's opinions and conduct our review de novo. Ibid.; see also Marconi v. United Airlines, 460 N.J. Super. 330, 337, 215 A.3d 544 (App. Div. 2019) ("[W]e owe no particular deference to the judge of compensation's interpretation of the law." (quoting Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548, 962 A.2d 1114 (App. Div. 2009) )).

The WCA does not require that payment of settlement benefits to petitioners must be made within a specific period of time. In her written supplement to her decision, the JWC said, "Under our [s]tatute, [the County] had up to [sixty] days to make ... payment." We assume this was a reference to N.J.S.A. 34:15-28, which provides:

Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of [sixty] or more days following entry of a judgment or order, simple interest on each weekly payment for the period of delay of each payment may, at the discretion of the [D]ivision, be added to the amount due at the time of settlement.

In 1979, in an attempt to eliminate unreasonable delays by employers and their insurers in the payment of temporary disability benefits under the WCA, the Legislature enacted N.J.S.A. 34:15-28.1, which provides:

If a[n] ... employer's insurance carrier, having actual knowledge of the occurrence of the injury, or having received notice thereof such that temporary disability compensation is due pursuant to [N.J.S.A.] 34:15-17, unreasonably or negligently delays or refuses to pay temporary disability compensation, or unreasonably or negligently delays denial of a claim, it shall be liable to the petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals. A delay of [thirty] days or more shall give rise to a rebuttable presumption of unreasonable and negligent conduct on the part of ... an employer's insurance carrier.

[Ibid. (emphasis added).]

"[I]n combination" with regulations adopted at N.J.A.C. 12:235-3.14, the statute was "plainly designed to assure that a party's obligations under the compensation laws, and consequent rulings by judges of compensation adjudicating those obligations, must be taken — as they should be — very seriously." Flick v. PMA Ins. Co., 394 N.J. Super. 605, 613, 928 A.2d 54 (App. Div. 2007).³

In Stancil, we outlined public criticism of the workers’ compensation system following our decision in Flick, and the Legislature's response. 418 N.J. Super. at 86–87, 12 A.3d 223. Among other provisions, the Legislature adopted N.J.S.A. 34:15-28.2(a) and (b) "to incentivize insurers to timely comply with compensation court orders." Id. at 89, 12 A.3d 223.

The statute provides:

If any employer ... fails to comply with any order of a judge of compensation ..., a judge of compensation may, in addition to any other remedies provided by law:

a. Impose costs, simple interest on any moneys due, an additional assessment not to exceed 25% of moneys due for unreasonable payment delay, and reasonable legal fees, to enforce the order, statute or regulation;

b. Impose additional fines and

...