DEPARTMENT OF LABOR

CHRISTINE TODD WHITMAN, Governor
MEL GELADE,  Commissioner

March 6, 2000

re: Salmons v. Wal-Mart Stores, Inc. - C.P. 98-08251

Gentlemen:

The sole issue presented for determination at this time in this case relates to the extent of an

employer's obligation to provide "light duty" or temporary disability benefits following the

termination of the sole shift on which petitioner had been employed.

In this particular case the petitioner had worked exclusively on the so-called graveyard shift

(11 pm through 7 am) prior to her injury. Following her injury the petitioner received

temporary disability benefits pursuant to court order for a period of time. Petitioner was then offered and accepted light duty on her former shift, at which time her temporary disability benefits ceased in accordance with the aforesaid order. Prior to being released to return to full duty, however, petitioner was advised by her employer that it was terminating the graveyard shift and that if she

wished to continue light duty she would have to report to work on one of the two (2) remaining

shifts. Petitioner testified that she has five (5) children at home, that her husband works on a

"day" shift, and that because of the care and meals that her children require the only shift available to her is the graveyard shift. Accordingly she refused to continue her light duty assignment after

the respondent terminated the graveyard shift and now seeks payment of temporary disability benefits for the period starting July 17, 1999 (the date of the termination of the graveyard shift) and

continuing until she can either return to her normal duties or, in the alternative, is adjudged to have

reached her maximum medical condition.

Respondent argues that it is not required to continue an unprofitable shift simply to provide light duty to petitioner on that shift. I do not disagree. However, where the petitioner accepts employment on a single shift, is employed over a lengthy period solely on that shift and presents a valid and rationale economic reason of her own for not accepting employment, whether light duty or otherwise, on another shift, I see no reason why the respondent is not obligated to pay the petitioner temporary disability benefits for the duration of the period prior to her return to full duty or being found to have reached a medical plateau in recovery from her injury, whichever first occurs. Tamecki v. Johns-Manvilla Prod. Corp., 125 N.J. Super. 355, 358 (App. Div. 1973); Electronic Assoc. Inc. v. Heisinger, 111 N.J. Super. 15, 21 (App. Div. 1970).

Respondent has presented several citations in its brief in which it represents as supporting its position.

It concedes that determination of the issue is controlled by N.J.S.A. 34:15-38 and those decisions

such as Tamecki, supra., Williams v. Topps Appl. City, 239 N.J. Super 528, 532 (App. Div. 1989)

and Harbatuk v. S. & S. Furniture Systs. Insul., 211 N.J. Super. 614, 621 (App. Div. 1986) which

hold that light duty can be offered in lieu of temporary disability benefits so long as it is found by

the court that the petitioner is able to perform same on a full time basis. Respondent offers no set of facts similar to those before me in this case however. Note on this point that Electronic Assoc. Inc. v. Heisinger, supra, stands for the dual propositions that (I) an employee who voluntarily terminates their employment is not entitled to temporary disability benefits after the date of such termination because he/she suffered no loss of current wages after such date, and (ii) a female employee's pregnancy is held to be a condition unrelated to her employment and therefore does not support the payment of temporary disability benefits. Respondent argues that the petitioner's desire to work only on the graveyard shift is, like pregnancy,

a personal choice. While I admit that there is a "personal" element in both decisions, petitioner's

desire to obtain third shift employment has an economic and direct relationship to her employment

that is clearly lacking in the decision to engage in sexual relations and/or to become pregnant as a result thereof. The petitioner's decision to seek and accept employment on the graveyard shift is

directly related to her family's need of a second income, the fact that her husband works during the

day, the further fact that the petitioner can accommodate her domestic duties best by working when

her 5 children are asleep, and lastly the fact that by working on the last shift the petitioner does not need to spend the money required to hire a baby-sitter for her children while she is at work. The

petitioner testified to these facts without contradiction. see T-12/14/99, pp. 28, 29.

It has long been the philosophy of the appellate courts of this state to direct that the Compensation

Statute be interpreted in a liberal manner so as to bring as many cases as possible within its coverage.

Smith v. E.T.L Enterprises, 155 N.J. Super. 343 (App. Div. 1978); Hannigan v. Goldfarb, 53 N.J. Super. 190 (App. Div. 1958). Toward this goal the Appellate Division has directed that all doubts relative to statutory coverage be resolved in favor of the injured party. Chickachop v. Manpower, Inc., 84 N.J. Super. 129 (Law Div. 1964). Indeed, the Smith court found that "the purpose of the

Workers' Compensation Act is to pass on the cost of industrial accidents as part of the cost of the

product". Smith, supra. at p. 349. In my mind the above direction and intent properly supports a finding that, on the record before me, requires the respondent to either provide light duty on the

last (11 pm to 7 am) shift to petitioner, or in the alternative, to pay her temporary disability

benefits from the date that respondent closed down petitioner's shift until she is ready to return to full duty, is deemed to have reached a medical plateau in her recovery, or the court so directs.

Respondent has, in my view, clouded the record in this matter with testimony and reference to

whether and in what manner the petitioner has forfeited her employment rights with respondent

by her failure to provide notice that she wished to take a leave of absence after her shift had been

terminated. By virtue of my ruling in this case such argument is rendered moot, since the period

of temporary disability benefits or light duty has not been terminated. In fact such benefit period

continues to date in the absence of the submission of a medical opinion stating that the petitioner has reached maximum recovery status.

I note for the record at this point that the respondent cut off temporary disability payments due

to petitioner by its unilateral action effective July 17, 1999. Such unilateral action, without even notice to the court, was and continues to be a clear violation of my order dated March 16, 1999 which directed various therapy activities to be provided in accordance with the opinion of Dr. David Treiman, M.D., an independent medical examiner.

When this matter is next listed I will expect to hear argument from counsel relative to the application

of sanctions by reason of respondent's action in this matter, as well as their respective positions on

the amount of temporary disability benefits now due and owing to petitioner and the counsel fee

due on same.

Neale F. Hooley
Judge of Compensation