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Gorman v. Waters & Bugbee2/2/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 5, 2005
Under N.J.S.A. 34:15-64(c), where an employer makes a timely voluntary tender to its employee of a payment for permanent partial disability within twenty-six weeks of the date of the final active medical treatment, the employer is relieved from paying an attorney's fee on that portion of the disability award representing the amount of the voluntary payment. Here, the Workers' Compensation judge ruled that the voluntary tender of payment was not timely because it was made beyond the twenty six week period and awarded petitioner's counsel an attorney's fee in the amount of $13,365, of which $8181 was payable by the employer. Respondent, Waters & Bugbee, Inc., the employer, appeals contending that although its insurance carrier, New Jersey Manufacturer's (NJM) payment occurred in the twenty seventh week, it was at a reasonable time before the hearing to determine the extent of petitioner's permanent partial disability and should have been considered timely. We are persuaded that the judge was correct in finding the voluntary payment by the employer's insurance carrier as untimely and affirm.
The facts are not in dispute. Petitioner, Anthony Gorman, sustained a back injury while working for his employer, on August 1, 2000. The employer was notified immediately and accepted the accident as compensable. The employer's Workers' Compensation insurance carrier, NJM, provided medical care and made temporary disability payments to petitioner. Petitioner did not return to work after the injury.
Petitioner filed a claim petition on August 15, 2001. In its answer, the employer acknowledged that petitioner had sustained a compensable injury while at work, but also invoked the"26-week rule" (N.J.S.A. 34:15-16) to determine total disability.
Petitioner's claim petition was first listed for hearing on June 10, 2002. That hearing was adjourned because petitioner was still actively receiving medical treatment. Petitioner last received active medical treatment on July 29, 2002.
The claim petition was next listed for a hearing on November 25, 2002. That hearing was also adjourned because: (1) twenty-six weeks had not yet elapsed from petitioner's last medical treatment as set forth in N.J.S.A. 34:15-16, and (2) petitioner had not yet obtained medical evaluations regarding the nature and extent of his permanent partial disability.
On December 5, 2002, the employer and NJM initiated discussions toward making a voluntary tender of permanent partial disability payments in accordance with N.J.S.A. 34:15- 64, when they were made aware that petitioner was"destitute."
On January 20, 2003, the employer approved making a voluntary tender to petitioner.
On January 22, 2003, the employer's medical expert examined petitioner and evaluated the extent of his disability. The expert prepared a written report dated January 29, 2003.
On January 29, 2003, NJM notified petitioner by letter of its intention to make a voluntary tender.
On January 30, 2003, NJM's Disbursing Department received the voluntary tender letter for processing and disbursement.
On February 3, 2003, NJM issued a check for $9456.36, which was received by petitioner on February 6, 2003.
A hearing was scheduled for November 19, 2003, at which time the parties agreed that petitioner sustained a permanent partial disability in the amount of 37-1/2 percent of total and settled petitioner's claim on those terms. The Workers' Compensation Judge approved the settlement.
The parties disagreed whether the empl
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