Katzenstein vs. Dollar General Continued: Standard of Review in Appealing Workers Comp Claims

Submitted by New Jersey Workers Compensation Attorney, Jeffrey Hark.

Previous related articles:

Katzenstein vs. Dollar General: Standard of Review in Appealing Workers Comp Claims

Award of Temporary Disability Benefits is a Final Judgment and May Be Appealed

As a result they file an unemployment compensation claim. Unfortunately, what you place in the unemployment compensation claim could create a conflict in testimony if and when a motion for medical and temporary disability benefits is filed to secure medical or temporary disability benefits.  The intersection between not being able to work, and needing employment and money to put food on your table, creates a significant dilemma for a vast majority of workers.

When a employee files a workers comp petition they are often worried if they’re going to be terminated for making the claim. As well, often employees are fired as a result of the accident on the job that caused their work-related injury. Truck drivers, delivery drivers, factory line workers, and others who are injured by doing something that is not part of the standard operating procedure for their employment description expose themselves to being terminated for failing to comply with work rules.

When you go to the unemployment office and/or fill out a unemployment claim online you are certifying that you are ready willing and able to work with little or no restrictions. However, in this case the petitioner even though he filed an application for unemployment, return to the Worker’s Compensation Court and filed a motion for medical and temporary disability benefits.  In the motion for medical and temporary disability benefits hearing petitioner needed to satisfy the court that but for his injuries he a) was available and willing to work b)  and he would be working but for his disability.  In the end the court did not believe him because of his contradictory testimony. Once the court made those findings of fact, and determinations of credibility the Appellate Division had to defer to the trial judges decision and the petitioner lost.

The following is the important part of the court’s decision addressing the credibility issue and the trial court’s decision: This appeal requires us to consider whether an employee, who was terminated after suffering a compensable injury arising from his former employment and deemed unable to work, is entitled to temporary disability benefits under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act) during his subsequent unemployment. The Division of Workers’ Compensation judge determined that the employee failed to meet the burden of proof under Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006), which requires a claimant to prove that he was not only available and willing to work, but that he would have been working if not for the disability. The crux of this matter is whether the employee presented sufficient evidence to satisfy the Cunningham requirement. For the reasons that follow, we affirm.

Katzenstein vd. Dollar General:

The facts are as follows:   On August 22, 2012, petitioner Matthew Katzenstein injured his right knee while at work as a store manager for respondent Dollar General. Katzenstein’s injury was deemed work related and he was authorized to be treated by Dr. David B. Basch. On September 19, Katzenstein was placed on “light duty,” restricting his work week to fifty hours. However, on September 28, Dollar General terminated Katzenstein for violating company policy when he left several store employees in the store without supervision while he went to the bank to deposit the previous days’ earnings. Katzenstein sought unemployment benefits from the Division of Unemployment Insurance (Division). On October 17, while Katzenstein was neither employed nor receiving unemployment benefits, Dr. Basch deemed him unable to work due to his knee injury. In a decision dated October 22, the Division determined that Katzenstein was not eligible for unemployment benefits on the ground that he was terminated was for simple misconduct. Katzenstein appealed to the Appeal Tribunal. In the meantime, despite being terminated, Katzenstein continued to be treated by Dr. Basch, who continued him on light duty, if available, with no lifting over twenty-five pounds, and ordered an MRI. Katzenstein subsequently filed a motion for medical treatment and temporary disability benefits. Approximately a month later, Dr. Basch recommended that Katzenstein not work at all and receive arthroscopic knee surgery.  On February 28, 2013, the judge of compensation entered an order which provided that the parties agreed without prejudice that Katzenstein shall receive temporary disability benefits for the period of November 14, 2012 to February 14, 2013 and Dollar General shall pay for an independent medical exam. Katzenstein subsequently filed a motion to enforce the order.

At the motion’s return date on September 6, 2013, the parties agreed that since the order had been complied with, they consented to have the judge sua sponte amend the motion for payment of temporary benefits – past and continuing. Thereafter, Katzenstein submitted an affidavit to the court in support of his position that, under Cunningham, he was entitled to temporary benefits despite his termination. He asserted that he was denied unemployment benefits because he “was unable to engage in employment due to the injury to my right knee.” Following testimony and argument on September 26, 2013, the judge of compensation issued a bench opinion on October 2, 2013, finding that Katzenstein was not entitled to temporary benefits. The court placed significant emphasis on its finding that Katzenstein gave untruthful statements regarding why the Division denied him unemployment benefits. The judge noted: The Notice of Termination is not considered for the truth of the statement regarding the reason for termination. However, it is admissible for its impact on the credibility of petitioner. The Notice from the Division not only fails to support [Katzenstein’s] reason advanced for the Division’s rejection of his application (an inability to work), but it directly contradicts his version — which he asserted twice under oath. What is also important to this case, in addition to the impact on [Katzenstein’s] credibility, is that it demonstrates that [his] leaving the job at Dollar General was not caused by his injury. Even [Katzenstein] admits that he did not leave Dollar General due to an inability to work because of his injury. He specifically testified that his termination was related to an issue, albeit disputed, pertaining to his compliance with company policy. The reason [Katzenstein] left the employ of [Dollar General] on September 29, 2012 is immaterial to my consideration of this application. Contrary to [Dollar General’s] position, [Katzenstein] would not be disqualified from [temporary disability benefits] solely on the basis of a “for cause” termination.

Though Katzenstein also gave testimonial evidence that he made an effort to find a job after he was terminated from Dollar General, the judge found that “the accuracy and veracity of his testimony . . . [was] dubious due to his lack of credibility.” In support, the judge not only mentioned that Katzenstein misstated the reason he was denied unemployment compensation, but that “[d]uring his testimony he sometimes evaded questions, and often inserted information in his answers that was not responsive to the question asked. He had to be admonished to answer only the question asked, and to refrain from extraneous comments.”

Upon finding Katzenstein “somewhat lacking in candor,” the judge reasoned that the record was devoid of evidence that Katzenstein had any promise or prospect of employment that he had to forego due to his disability, and that under Cunningham, he was not entitled to temporary disability benefits for days when there was no actual loss of wages.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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