                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3209-11T1

GINA PARASCANDOLO,

     Appellant,                         APPROVED FOR PUBLICATION

v.                                            May 22, 2014

DEPARTMENT OF LABOR,                      APPELLATE DIVISION
BOARD OF REVIEW, BRICK
TOWNSHIP BOARD OF
EDUCATION and VINNY'S
KING PIZZA,

     Respondents.
________________________________________________________________

         Submitted October 16, 2013 – Decided May 22, 2014

         Before Judges Fisher, Espinosa and Koblitz.

         On   appeal  from   the   Board  of   Review,
         Department of Labor, Docket No. 333,049.

         Pezzano Mickey & Bornstein LLP, attorneys
         for appellant (Lisa Pezzano Mickey, on the
         brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent Board of Review
         (Lewis A. Scheindlin, Assistant Attorney
         General, of counsel; Alan C. Stephens,
         Deputy Attorney General, on the brief).

         Berry, Sahradnik, Kotzas & Benson, attorneys
         for respondent Brick Township Board of
         Education, join in the brief of respondent
         Board of Review.

         Respondent Vinny's King Pizza has not filed
         a brief.
       The opinion of the court was delivered by

ESPINOSA, J.A.D.

       In enacting the Temporary Disability Benefits Law (TDBL),

N.J.S.A.    43:21-25   to    -66,    the       Legislature   sought     to   provide

relief to workers who suffered involuntary unemployment and loss

of wages due to illness or injury that was not covered by the

Workers'    Compensation     Act    (WCA),       N.J.S.A.    34:15-1    to   -128.5.

The TDBL was to "fill the gap" in existing employee welfare

legislation and expressly provided that its benefits should not

duplicate benefits provided under the WCA.                   See N.J.S.A. 43:21-

26, -30.       Because the TDBL was generally applied to situations

involving one employer, the legal issue that typically arose

thereafter     involved     an    "either/or"      analysis;    the     injury     was

either covered by the WCA or the TDBL but not both.

       We first considered the interplay of the two statutes in a

case where the worker had two employers in In re Scott, 321 N.J.

Super. 60 (App. Div. 1999), aff'd, 162 N.J. 571 (2000).                            The

worker was injured at his part-time job and we determined that

the receipt of temporary workers compensation benefits (TWCB)

from    that    employer    did     not    bar    the   receipt    of    temporary

disability benefits (TDB) for the loss of wages from his primary

employer.      Id. at 65-66.       This appeal requires us to examine the

interplay of the two statutes once again to determine their




                                           2                                 A-3209-11T1
application       when    only    one    of       two    employers       is     a   "covered

employer" under the TDBL and whether the right to subrogation

applies    under    such     circumstances              even    though     there      was    no

duplication of benefits.

    Appellant Gina Parascandolo held two part-time jobs when

she was injured in the course of her employment at one of the

jobs.      She    received       TWCB    from      the       employer    where       she    was

injured, a public employer that did not participate in the State

Disability Benefits Fund, and TDB through her other employment.

Although    she    received       both    forms         of     benefits,      she    did    not

receive duplicate benefits.               She appeals from a final agency

decision    of    the    Department       of      Labor,        Board    of   Review       (the

Board),    that    held    appellant       was      obligated       to     reimburse        the

Division     of    Temporary       Disability            Insurance       (the       Division)

because she received both TDB and TWCB for the same injury.                                 For

the reasons that follow, we reverse.

                                              I

    We     begin    by    briefly       reviewing         the    history      of    employee

welfare legislation, which began with the enactment of the WCA.

Originally enacted in 1911, the WCA represented a "'historic

trade-off whereby employees relinquished their right to pursue

common-law    remedies      in    exchange        for        automatic    entitlement        to

certain, but reduced, benefits whenever they suffered injuries




                                              3                                      A-3209-11T1
by accident arising out of and in the course of employment.'"

Van Dunk v. Reckson Assoc. Realty Corp., 210 N.J. 449, 458-59

(2012) (quoting Millison v. E.I. du Pont de Nemours & Co., 101

N.J. 161, 174 (1985)).           Compensation under the WCA is limited to

injuries suffered "in the course of employment when the employee

is    engaged      in   the   direct   performance        of   duties   assigned    or

directed by the employer."               N.J.S.A. 34:15-36; see Hersh v.

Cnty. of Morris, 217 N.J. 236, 249-50 (2014).

       The next development came in 1936 with the passage of the

Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -24.30.

See Butler v. Bakelite Co., 32 N.J. 154, 160 (1960).                        From the

outset,      the   UCL   was    recognized      as     remedial   legislation,     its

"primary objective" being "to provide a cushion for the workers

of New Jersey 'against the shocks and rigors' of unemployment."

Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J. Super.

309, 318 (App. Div. 2007) (internal citation omitted), certif.

denied, 195 N.J. 420 (2008).            Accordingly, the provisions of the

UCL    are    liberally        construed,       even    permitting      a   statutory

employer-employee relationship, the "center of the UCL," to be

found when the facts might not satisfy common law principles.

Id. at 318-19.

       However, the worker who suffered involuntary unemployment

as the result of a disabling accident or illness that did not




                                            4                                A-3209-11T1
arise in the course of employment received no relief from these

statutes.    See Butler, supra, 32 N.J. at 160-62; Janovsky v. Am.

Motorists Ins. Co., 11 N.J. 1, 4 (1952).               In enacting the TDBL

in 1948, the Legislature recognized the need

            to fill the gap in existing provisions for
            protection against the loss of earnings
            caused   by   involuntary   unemployment,   by
            extending such protection to meet the hazard
            of earnings loss due to inability to work
            caused     by    nonoccupational     sickness,
            accidents, or other disabilities of workers.

            [N.J.S.A. 43:21-26 (emphasis added).]

    The     Legislature    declared       that   the    TDBL    was     remedial

legislation to be liberally construed.              Ibid.      The Legislature

also clearly expressed its intent that, while the TDBL was to

fill a gap in the protections afforded by the WCA and the UCL,

it would not duplicate the benefits provided by those statutes.

The TDBL thus allows "the payment of reasonable cash benefits to

eligible    individuals   who   are   subject    to    accident    or   illness

which is not compensable under the workers' compensation law."

Ibid.   (emphasis   added).      With     certain     specified    exceptions,

N.J.S.A. 43:21-30(b) explicitly bars the duplication of benefits

paid under the WCA:

            No benefits shall be required or paid under
            this act for any period with respect to
            which benefits . . . are paid or payable on
            account of the disability of the covered
            individual under any workers' compensation
            law . . . .



                                      5                                 A-3209-11T1
    Thereafter, the legal issue that was typically raised was

which of the statutes applied to provide relief to the worker

who suffered a loss of wages due to involuntary unemployment.

See, e.g., Janovsky, supra, 11 N.J. at 3-5; see also Butler,

supra, 32 N.J. at 157.    As the      Court explained,

          Where an employee is disabled by accident or
          illness he will generally be entitled to
          benefits under either the compensation law
          or the benefits law, but not under both. If
          liability under the compensation law is
          clear, payment will be made thereunder, and
          if absence of liability under that statute
          is clear, payment will be made under the
          benefits law.

          [Janovsky,    supra,   11       N.J.    at     5   (emphasis
          added).]

    A "twilight zone" was recognized for cases when "liability

under the compensation law [is] doubtful and dependent on the

outcome of contested proceedings."               Ibid.       In such cases, the

TDBL provides benefits "to help tide the worker over during his

inability to work . . . with full reimbursement from any award

subsequently rendered in the compensation proceeding."                    Ibid.;

N.J.S.A. 43:21-30(b)(1), (2).

    The   application    of   this        nonduplication        requirement     is

straightforward in cases where the employee holds one job.                     See

Sperling v. Bd. of Review, 301 N.J. Super. 1, 5 (App. Div.

1997), aff’d, 156 N.J. 466 (1998).               When an employee has only




                                      6                                  A-3209-11T1
one job and suffers an injury "arising out of and in the course

of his employment," Janovsky, supra, 11 N.J. at 4, it is clear

the injury is compensable under the WCA and, therefore, any TDB

for the same injury would duplicate those benefits.                           It was

within that factual context that we held in Sperling that an

individual       who     obtains     workers'      compensation      benefits      by

settlement "may not obtain temporary disability benefits for the

same injury."          Sperling, supra, 301 N.J. Super. at 5 (emphasis

added).         However,      the    interplay    between     the   two     statutes

requires closer scrutiny when, as here, the employee has more

than one job.

       In 1999, we decided Scott, which, we recognized, was unlike

cases    such    as     Janovsky     and   Sperling    that    dealt      "with   the

traditional situation of a worker who has one job and is injured

in circumstances not covered, or clearly covered, by workers'

compensation."         Scott, supra, 321 N.J. Super. at 65.               In Scott,

the     employee       held   both    full-time     employment,      with     Konica

Business Machines, and a part-time job, with Holiday Bowl.                         He

was injured "in the course of his employment" at his part-time

job.     Id. at 62-63.         He obtained workers' compensation for the

injury    calculated       solely    on    his   earnings   from    Holiday    Bowl.

Ibid.     As a result, the compensation benefits he received were

less than he would have received if the accident occurred at




                                            7                               A-3209-11T1
Konica.     Id. at 64.    His application for TDB based on his

inability to work at his full-time employment was denied by a

private plan hearing officer.        Id. at 63.   On appeal, Konica

argued that no TDB should be paid because "such benefits are

payable only for injuries 'not compensable under the workers'

compensation law,' N.J.S.A. 43:21-29," and argued further that,

because Scott obtained workers' compensation from Holiday Bowl,

N.J.S.A. 43:21-29 and -30 prohibited the payment of any TDB to

him.   Scott, supra, 321 N.J. Super. at 63-64.

       We acknowledged that the argument had "some literal appeal"

but rejected the notion that the Legislature intended a blanket

prohibition against the payment of any TDB:

           [W]e do not interpret those provisions to
           reflect a legislative intention to deny all
           temporary disability benefits to a disabled
           full-time worker, merely because he receives
           a workers' compensation award as a result of
           an accident "arising out and in the course
           of" unrelated part-time employment, when the
           workers' compensation benefits he receives
           are calculated solely on the basis of his
           earnings with that employer and are far less
           than would have been payable had the
           accident occurred on the full-time job.

           [Id. at 64.]

       Noting the remedial nature of the TDBL, N.J.S.A. 43:21-26,

we found

           neither  logical  support   nor  empirical
           evidence that the Legislature intended to
           deprive a worker who pays deductions for



                                 8                          A-3209-11T1
            temporary disability benefits from obtaining
            those benefits to compensate him for the
            loss of income at his full-time employment
            merely because his injury occurred at a
            second or part-time job taken to supplement
            that income.

            [Id. at 65.]

We observed, "The employee should not be worse off because the

accident, not related to his full-time or prime employment and

therefore    otherwise       entitling        him     to   temporary     disability

benefits    through       that    employer,         happened    to   occur     at    an

unrelated part-time work site."              Id. at 66.

      We remanded the case to the Department of Labor for further

proceedings consistent with our opinion.                   Citing Justice Stein's

concurring opinion in Sperling v. Bd. of Review, 156 N.J. 466,

468   (1998),   we    directed     the   Department        of    Labor   to    examine

"whether the disability carrier should be entitled to a set-off

'to   the   extent   of    the'    temporary        workers'    benefits      obtained

through workers' compensation . . . or in some other amount" and

the manner in which such a set-off would be undertaken.                         Scott,

supra, 321 N.J. Super. at 66-67 (emphasis added).                     Significantly

for the purposes of this appeal, both employers in Scott were

"covered employers" under the TDBL, and we did not establish any

procedure to be followed regarding a set-off.                    Rather, we stated

the   set-off   argument         "must   be     examined        in   light    of    our

conclusion that the statutory interplay itself must be examined



                                         9                                    A-3209-11T1
separately    with    respect     to    each      job."         Id.   at   66   (emphasis

added).      And, we explicitly adopted the point emphasized by

Justice O'Hern in his separate opinion in Sperling:

             It is quite obvious to even the most casual
             reader of its title that N.J.S.A. 43:21-30
             intends to avoid double recovery, not full
             recovery.     Although no specific offset
             provision exists, the purpose of the law
             demonstrates that recovery for temporary
             disability and workers' comp is not mutually
             exclusive.   The title to N.J.S.A. 43:21-30
             is   "Nonduplication    of  benefits,"   not
             "Election of benefits."

             [Sperling, supra, 156 N.J. at 473 (O'Hern,
             J., concurring and dissenting).]

      Our    opinion     thus      moved          the        interpretation         of     the

nonduplication       provisions    of       the        TDBL    away   from      a   literal

approach that would permit language designed to preclude "double

recovery"    to   unfairly      limit       a    worker's       benefits     based        upon

chance circumstances when a worker has more than one job.                                As we

emphasized, the interplay between the WCA and the TDBL "must be

examined separately with respect to each job."                             Scott, supra,

321   N.J.   Super.    at   66.        As       part    of    that    examination,         due

consideration should be given to the employee's payments for TDB

and the principle that it is only double recovery, not full

recovery, of benefits that is prohibited.                       Our decision prompted

both legislative and regulatory action.




                                            10                                      A-3209-11T1
     N.J.S.A.    43:21-30(b)(3)         was   intended    to    codify     Scott    by

establishing a set-off procedure:

            If there has been a settlement of a workers'
            compensation claim pursuant to [N.J.S.A.]
            34:15-20 in an amount less than that to
            which   the  claimant  would   otherwise  be
            entitled as disability benefits under the
            [TDBL] for the same illness or injury, the
            claimant shall be entitled to disability
            benefits for the period of disability,
            reduced by the amount from the settlement
            received by the claimant under [N.J.S.A.]
            34:15-20.

     The Department of Labor promulgated N.J.A.C. 12:18-1.5 to

"conform[] the regulations to the Scott decision which addressed

the issue of the offset by the Division of Temporary Disability

Insurance   of   temporary       workers'     compensation          benefits."      33

N.J.R. 3622(a) (Oct. 15, 2001).1

     The    Department's        statement     regarding       the    proposed    rule

explained    that   it    had    been    "rewritten      to    ensure     that     the

Division or the private plan retains the right of subrogation"

to all aspects of workers' compensation awards, as upheld in

Janovsky,    supra,      "thereby       insuring   the        integrity     of     the

Temporary Disability Trust Fund . . . .             Specifically, to permit

a claimant to keep disability benefits and temporary workers'


1
   The Division of Temporary Disability's right of subrogation of
duplicate   workers'   compensation   benefits   was   previously
established by N.J.S.A. 34:15-57.1.




                                         11                                 A-3209-11T1
compensation   benefits    would        result   in   a   windfall    not

contemplated by law."     Ibid. (emphasis added).         Addressing the

concern we raised in Scott, the Department stated the rule would

         ensure that an employee who works more than
         one job, who is injured during the course of
         his or her duties with one of his or her
         employers,   and   who  seeks   to   collect
         disability benefits, is not worse off merely
         because his or her injury or illness
         occurred at a second job taken to supplement
         his or her income.     In other words, the
         proposed new rule seeks to ensure that
         injured workers in New Jersey receive all of
         the benefits to which they are entitled by
         law.

         [Ibid. (emphasis added).]

    N.J.A.C. 12:18-1.5 states,

            (a) If a covered individual with more
         than    one   employer    receives   temporary
         workers' compensation benefits for an injury
         or   illness   incurred   at   one  place   of
         employment and that individual files a claim
         for New Jersey temporary disability benefits
         as a result of the same injury or illness on
         the basis of his or her employment with the
         other    employer(s),   those   benefits   are
         payable under the New Jersey State plan or
         an approved private plan provided that:

              1. The claimant otherwise meets the
         eligibility    criteria    for    temporary
         disability benefits in accordance with [the
         TDBL];

              2. Wages from all covered employers are
         used to calculate the temporary disability
         insurance weekly benefit rate . . . ;

              3. The temporary disability insurance
         weekly benefit rate is reduced by the



                                   12                           A-3209-11T1
            temporary   workers'            compensation        weekly
            benefit rate;

                 4. The claimant receives the temporary
            disability   insurance  benefits   at   the
            adjusted rate; and

                 5. Any such reduction in the temporary
            disability insurance weekly benefit rate
            shall also reduce the maximum total benefits
            payable during the period of disability.

                                       II

      We now turn to the facts of this case.

      Appellant   had    two   part-time      jobs.     At     the    time    of   her

injury, her major source of income was her part-time job with

Vinny's Pizza, where she earned $500 per week.                       She was also

employed, part-time, as a cafeteria worker by the Brick Township

Board of Education (BOE), earning approximately $215 per week.

She tore the rotator cuff on her right shoulder after picking up

a heavy tray at BOE and eventually required surgery.                         She was

unable to work for either employer for the period from January

20, 2009, through May 1, 2009.

      The TDBL established an entitlement program funded out of

contributions paid by covered employers and employees, N.J.S.A.

43:21-46; N.J.S.A. 43:21-7(d)(1)(G); N.J.S.A. 43:21-7(e).                          Only

one   of   appellant's   employers,       Vinny's     Pizza,    was    a     "covered

employer" under the TDBL.             N.J.S.A. 43:21-27(a)(1) defines a

"covered    employer"    as    "any   .   .   .   employer      subject       to   the




                                       13                                    A-3209-11T1
'unemployment compensation law' . . .                   except the State, its

political    subdivisions,      and   any   instrumentality         of   the      State

unless     such    governmental   entity    elects      to    become     a   covered

employer."        Because BOE did not elect to participate in the TDB

program, it is not a "covered employer."                It did not contribute

to   the   State     Disability   Benefits       Fund   and    no   contributions

toward the fund were taken from the wages appellant earned from

BOE.

       Through her employment with Vinny's, appellant contributed

to the State Disability Benefits Fund as required by N.J.S.A.

43:21-46     and     N.J.S.A.   43:21-7(d)(1)(G).             Accordingly,         when

appellant became unable to work due to her injury, she filed a

claim for TDB for the loss of her income from Vinny's Pizza in

January     2009.2       Following    instructions        given     her      by     the

Division's customer service representative, appellant submitted

a claim form that stated she had not been injured during the

course of her employment at Vinny's.              However, she also supplied

a certification from BOE, which stated her injury was work-

related and that a workers' compensation claim was anticipated.

       N.J.S.A.      43:21-40   provides    in    pertinent      part     that      the

amount of an individual's weekly TDB "shall be two-thirds of his

2
   Appellant identified her employer as "Vinnie's Pizza" on her
claim form.    Since all pleadings refer to the employer as
"Vinny's Pizza," we use that spelling.



                                       14                                    A-3209-11T1
average   weekly   wage,   subject    to   a   maximum   of   53%   of    the

Statewide     average   weekly   remuneration     paid   to   workers      by

employers."     The definition of "average weekly wage"3 contained

in N.J.S.A. 43:21-27(j) is explicitly linked to the amount of


3
   As applied to appellant's claim for TDB, N.J.S.A. 43:21-27(j)
provides, in pertinent part:

            (1) "Average weekly wage" means the amount
            derived by dividing a covered individual's
            total wages earned from the individual's
            most recent covered employer during the base
            weeks . . . by the number of such base
            weeks.

            (2) If the computation in paragraph (1)
            . . . yields a result which is less than the
            individual's average weekly earnings in
            employment with all covered employers during
            the base weeks . . . then the average weekly
            wage shall be computed on the basis of
            earnings from all covered employers during
            the base weeks . . . .

            (3) For periods of disability commencing on
            or after July 1, 2009, if the computations
            in paragraphs (1) and (2) . . . both yield a
            result which is less than the individual's
            average weekly earnings in employment with
            all covered employers during the base weeks
            in   the   26    calendar  weeks   immediately
            preceding the week in which the period of
            disability    commenced,  then   the   average
            weekly wage shall, upon a written request
            . . . be computed by the department on the
            basis of earnings from all covered employers
            of the individual during the base weeks in
            those 26 calendar weeks . . . .

            [Emphasis added.]




                                     15                             A-3209-11T1
wages a "covered individual" earns from a "covered employer."

Similarly, the definition of "wages" to be used in interpreting

the TDBL is "all compensation payable by covered employers to

covered individuals for personal services . . . ."                 N.J.S.A.

43:21-27(h) (emphasis added).

    Because BOE was not a "covered employer," only the wages

earned from Vinny's Pizza were used to calculate appellant's

weekly    entitlement    under      the   State     Disability    program.

Consistent with the weekly benefit rate authorized by N.J.S.A.

43:21-40, appellant received weekly TDB of $333 per week (minus

FICA), an amount equal to two-thirds of her average weekly wage

at Vinny's, for the period from January 20, 2009, to May 1,

2009.

    In April 2009, appellant filed a claim petition with the

Division of Workers' Compensation for the injury she sustained

at BOE.    Her claim for lost wages was based only on the gross

weekly wages she received from BOE, which she listed as $215.

BOE did not dispute her claim.

    In    September   2010,   the   Division   of   Temporary    Disability

Insurance filed a Notice of Lien pursuant to N.J.A.C. 12:18-1.5

with the Division of Workers' Compensation in the amount of

$4,788.19 on the claim pending before the Division of Workers'




                                     16                            A-3209-11T1
Compensation.       The    amount      of    the    lien    represented      the      full

amount of TDB appellant had received.

      That same month, appellant filed an appeal from the lien,

arguing she had not received a duplicate payment of benefits for

her   injury.      On     April   5,    2011,      the     Division     of   Temporary

Disability      reduced    the    lien       to    $2,848.23       to     reflect       the

difference between appellant's weekly benefit rate entitlement

to TDB and her weekly entitlement to TWCB.                       The net effect was

to reduce appellant's weekly TDB rate from $333, the equivalent

of two-thirds of her average weekly wage at Vinny's, to $135.

      On March 31, 2011, an Order Approving Settlement was filed

in the Division of Workers' Compensation.                        Appellant and BOE

stipulated that appellant had "an admittedly compensable injury"

and agreed upon a 22 1/2% partial total permanent disability

award to appellant in the total amount of $23,271.                           The order

approving    settlement       listed         her     weekly       wages      as      "$350

(reconstruct[)]" and the TWCB rate as "$198.00/$245.00."                                She

received $2,941.68 in TWCB.            Appellant agreed to pay the revised

lien, reserving her right to appeal the assertion of the lien.

      Appellant     satisfied       the      lien     before      her     appeal        was

conducted telephonically by an Appeals Examiner in June 2011.

Testimony    was    taken     from      appellant          and   Robert      Goyne,        a




                                            17                                    A-3209-11T1
supervisor in the Division of Temporary Disability Insurance's

claims intake section.

       Goyne maintained that, pursuant to our decision in Scott,

and    N.J.A.C.     12:18-1.5,    a   lien       was   required    to    reduce

appellant's TDB by the amount of workers' compensation paid.

According to Goyne, it was immaterial that BOE was not a covered

employer and that appellant's TDB was based solely upon her

wages from her only covered employer.             He said that, "following

the Scott procedure," when there are two employers, one of whom

is    paying    workers'   compensation    benefits,    "the   [TDB]    benefit

must be reduced by the amount of the workers' compensation if

the weekly benefit rate is higher."               Goyne testified that the

lien    of     $2,848.23   represented     the    difference      between     the

benefits "exactly as the Scott procedure stated."

       The Appeal Tribunal concluded that the lien was properly

imposed pursuant to N.J.A.C. 12:18-1.5, stating,

               The evidence presented indicates that the
               claimant   received   Workers'   Compensation
               benefits and State Plan Disability benefits
               for the same disability for the same period
               of time.     In this case, the claimant's
               monetary    entitlement    to   State    Plan
               Disability benefits was based on her wages
               earned solely with [Vinny's Pizza] since her
               wages with [BOE] were not covered under the
               State Plan Disability Law in accordance with
               N.J.S.A. 43:21-27(a)(1). Her weekly benefit
               rate of $333.00 is therefore considered
               appropriate in accordance with N.J.A.C.




                                      18                                A-3209-11T1
              12:18-1.5 since the calculation was based on
              wages earned from all covered employers.

              . . . [T]he claimant's entitlement to an
              adjusted rate of $135.00 is also considered
              appropriate under N.J.A.C. 12:18-1.5 since
              she received Workers' Compensation benefits
              in the amount of $198.00 per week as a
              result of the same injury or illness.
              Therefore, the claimant is liable for refund
              in the amount of $2,848.23 for State Plan
              Disability benefits paid from 1/20/2009
              through 5/01/2009.

     Appellant timely filed an appeal from the decision of the

Appeal   Tribunal    to     the   Board     of   Review,   which   affirmed   the

decision of the Appeal Tribunal.

                                       III

     Appellant      advances        several      arguments    to   support    her

contention that the lien was improperly asserted here.                        She

argues that, because she was not entitled to receive workers'

compensation benefits for her loss of income from Vinny's, the

Division of Temporary Disability Insurance could not properly

assert a lien on her TWCB for the TDB she received based upon

her wages from Vinny's.           She argues further that her TDB weekly

benefit should not have been reduced by the TWCB she received

based    on   her   wages    from    BOE    because   those    wages   were   not

included in calculating her TDB rate.4


4
   In addition, appellant argues that her receipt of TWCB did not
disqualify her from receiving TDB for the income she lost from
                                                      (continued)


                                           19                           A-3209-11T1
    The Board counters that, pursuant to N.J.S.A. 43:21-30 and

N.J.A.C. 12:18-1.5, appellant was paid TDB she was not entitled

to receive.        Because both TDB and TWCB were paid for "the same

injury,"     the    Board     argues   it    correctly     determined    that     a

reduction of appellant's TDB was required and that she is liable

for a partial refund of benefits pursuant to N.J.S.A. 43:21-

55.1.

    We     recognize    that     our   review     of    administrative     agency

decisions is "limited."          Brady v. Bd. of Review, 152 N.J. 197,

210 (1997).        An appellate court will not upset the ultimate

determination of an agency unless shown "that it was arbitrary,

capricious or unreasonable, that it lacked fair support in the

evidence, or that it violated legislative policies expressed or

implicit in the act" governing the agency.                 Campbell v. Dep't of

Civil Serv., 39 N.J. 556, 562 (1963); see also Brady, supra, 152

N.J. at 210.       However, the central issue in this appeal concerns

the interpretation of our decision in Scott and the statute and

regulation    that     were    intended      to   codify    and   implement     it,

N.J.S.A.     43:21-30(b)(3)      and   N.J.A.C.        12:18-1.5.       While    we


(continued)
Vinny's.   The Board does not contend that she was disqualified
from receiving TDB, only that the right to subrogation applied
to the TDB she received.        Finally, she argues that the
Division's right to subrogation is limited to TDB payable under
the WCA, N.J.S.A. 34:15-12, and does not extend to permanency
benefits. We need not address this issue.



                                        20                               A-3209-11T1
respect an agency's expertise, the interpretation of statutes

and   caselaw      is    ultimately     a   judicial,    rather    than     an

administrative, function.          We are therefore not bound by the

agency's interpretation.         Mayflower Sec. Co. v. Bureau of Sec.,

64 N.J. 85, 93 (1973); see also Shim v. Rutgers, 191 N.J. 374,

384 (2007).       "Although judicial review of administrative actions

is limited, courts will intervene when 'an agency action is

clearly inconsistent with its statutory mission or other state

policy.'"       N.J. Ass'n of Realtors v. N.J. Dep't of Envtl. Prot.,

367 N.J. Super. 154, 160 (App. Div. 2004) (quoting In re Musick,

143 N.J. 206, 216 (1996)).

      As   we    have   noted,   the   Department   expressly   stated    that

N.J.A.C. 12:18-1.5 was proposed to conform the regulations to

our decision in Scott.           In its statement, the Department said

that the subrogation procedure set forth in the regulation would

preserve the integrity of the Fund and insure a full recovery of

benefits by the worker while precluding a windfall to the worker

that was not contemplated by the Legislature.             These objectives

are fully compatible with Scott.

      However, in Scott, we also stated that, when the injured

worker has more than one employer, the interplay of the TDBL and

WCA must be viewed separately with respect to each job.                   And,

the worker should not be worse off, i.e., denied full recovery




                                       21                           A-3209-11T1
of benefits, because the injury occurred at one workplace rather

than another.

     Viewing each job separately here, the injury occurred "in

the course of employment when" appellant was "engaged in the

direct   performance    of   duties   assigned   or   directed    by"    BOE.

N.J.S.A. 34:15-36.       Therefore, her claim for lost wages under

the WCA was limited to the wages earned at BOE.

     The   loss   of   appellant's    substantially   higher     wages   from

Vinny's was "not compensable under the [WCA]," N.J.S.A. 43:21-

26, and fell within the very gap the TDBL was designed to fill.

The only remedy available to cushion her against the loss of

those wages was the TDB for which she was eligible pursuant to

N.J.S.A. 43:21-29(a).5       Deductions were taken from the wages she

earned at Vinny's for the Fund, and her "full recovery" of TDB




5
   Curiously, the Board does not dispute appellant's eligibility
for TDB under this statute, which provides:

           In the case of the disability of a covered
           individual, disability shall be compensable
           . . . if the disability is the result of the
           covered individual suffering an accident or
           sickness not arising out of and in the
           course of the individual's employment or if
           so   arising    not   compensable    under   the
           workers' compensation law, . . . and
           resulting    in     the    individual's    total
           inability    to    perform    the   duties    of
           employment.



                                      22                            A-3209-11T1
was two-thirds of her wages from Vinny's, or $333 per week, in

accordance with N.J.S.A. 43:21-40.

      The Board has failed to show that appellant's receipt of

the sum paid to compensate her for the wages she lost from

Vinny's     was    a   "windfall"       to    appellant.            Still,       the   Board

maintains that appellant's receipt of the full amount of TDB due

her   based      solely   on   her   wages        from    Vinny's    must     be   reduced

pursuant to N.J.S.A. 43:21-30(b)(3) and N.J.A.C. 12:18-1.5.

      The     authorities      relied    upon       do   not   clearly       support     the

interpretation adopted by the Board, i.e., that the fact only

one of a worker's employers is a "covered employer" under the

TDBL has no impact on the Division's right to subrogation.

      N.J.S.A. 43:21-30(b)(3) describes the worker's entitlement

to disability benefits and a subsequent reduction in benefits in

a specific scenario: when the workers' compensation claim has

been settled for less than the applicable TDB "for the same

illness     or    injury."      Given    the       fact    that     this     statute     was

enacted in response to Scott, and its reference to the receipt

of both TDB and TWCB, it can be assumed that employment by

multiple employers was contemplated.                       Notably, Scott did not

concern     a    situation     in    which        one    employer    was     a     "covered

employer" under the TDBL and the other was not and the statute

is silent on that point.




                                             23                                    A-3209-11T1
       On     its     face,         N.J.A.C.        12:18-1.5      is     similarly

undiscriminating       on    this    issue.     In     the    first   instance,        it

refers to

              a covered individual with more than one
              employer [who] receives temporary workers'
              compensation benefits for an injury or
              illness incurred at one place of employment
              and . . . files a claim for New Jersey
              temporary disability benefits as a result of
              the same injury or illness on the basis of
              his or her employment with the other
              employer(s).

              [N.J.A.C. 12:18-1.5(a) (emphasis added).]

       The    disparity      between    identifying          the   employee      as    a

"covered individual" and using the term "employer," rather than

"covered employer," suggests that the status of the employer as

"covered"      or   not,    is   immaterial     to    the     application     of      the

subrogation provision.            This is the interpretation applied by

the Board.

       However, review of the definitions section for the TDBL

reveals      that   such    an   interpretation       is    erroneous.      N.J.A.C.

12:18-1.1 states that "'Employer' means a covered employer as

defined in N.J.S.A. 43:21-27(a)."              (Emphasis added).         Therefore,

when   the     literal      language   of     the    subrogation      provision        is

altered to reflect the actual meaning of the words, the right to




                                         24                                   A-3209-11T1
subrogation   is    clearly   limited   to   circumstances   where   the

injured worker has more than one covered employer:6

          (a) If a covered individual with more than
          one [covered] employer receives temporary
          workers' compensation benefits for an injury
          or   illness  incurred   at   one  place   of
          employment and that individual files a claim
          for New Jersey temporary disability benefits
          as a result of the same injury or illness on
          the basis of his or her employment with the
          other [covered] employer(s), those benefits
          are payable under the New Jersey State plan
          or an approved private plan provided that:

          . . . .

               2. Wages from all covered employers are
          used to calculate the temporary disability
          insurance weekly benefit rate . . . ;

               3. The temporary disability insurance
          weekly benefit rate is reduced by the
          temporary   workers'  compensation  weekly
          benefit rate;

               4. The claimant receives the temporary
          disability   insurance  benefits   at   the
          adjusted rate; and

               5. Any such reduction in the temporary
          disability insurance weekly benefit rate
          shall also reduce the maximum total benefits
          payable during the period of disability.

          [N.J.A.C. 12:18-1.5]

     In sum, we conclude that the Board's decision was based

upon an erroneous interpretation of N.J.S.A. 43:21-30(b)(3) and

6
     This interpretation is consistent with the              regulation
regarding "Concurrent coverage," N.J.A.C. 12:18-3.5.




                                   25                          A-3209-11T1
N.J.A.C.    12:18-1.5   that     undermined   the   policy    underlying   the

TDBL by denying appellant the full recovery of benefits due her

when there was neither a duplication of benefits nor a windfall

to   her.      We    discern     no   legislative   mandate     to   penalize

appellant's diligence in holding two jobs by reducing the TDB

she was entitled to receive from Vinny's.             The Board's decision

was therefore arbitrary, capricious, and unreasonable, requiring

reversal.     See Russo v. Bd. of Trs., Police and Firemen's Ret.

Sys.,   206   N.J.    14,   33   (2011)     (reversing   an   administrative

decision where the board's interpretation of a legal standard

was held to be "inaccurate,           . . . contrary to the legislative

objectives that standard embodies, and . . . clearly erroneous

as a matter of law").

     Reversed and remanded for further proceedings consistent

with this opinion.      We do not retain jurisdiction.




                                       26                            A-3209-11T1
