                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2650-18T3

ESPERANZA CALERO,

          Petitioner-Respondent,

v.

TARGET CORPORATION,

     Respondent-Appellant.
__________________________

                   Submitted May 11, 2020 – Decided June 10, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the New Jersey Department of Labor
                   and Workforce Development, Division of Workers'
                   Compensation, Claim Petition No. 2013-028255.

                   Cipriani & Werner, PC, attorneys for appellant
                   (Edward C. Kein, on the briefs).

                   Wysoker, Glassner, Weingartner, Gonzalez &
                   Lockspeiser, PA, attorneys for respondent (Allan L.
                   Lockspeiser, on the brief).

PER CURIAM
      Target Corporation appeals from the January 16, 2019 order entered by a

judge of compensation amending an August 23, 2016 order approving a

settlement. After granting Target's former employee, Esperanza Calero's motion

for reconsideration in July 2018, the judge held a hearing and then entered the

2019 order reconstructing Calero's wages and award that were established in the

2016 order. On appeal, Target contends, for the first time, that "doctrines

concerning fairness and public policy require" that this action be dismissed. 1 In

the alternative, it argues that the 2019 order "was erroneous and . . . contrary to

statutory and case law" and "should be reversed." We affirm.

      The facts gleaned from the record are summarized as follows. Calero

sustained a work-related injury while employed by Target. Thereafter, the

parties initially filed contesting pleadings, but on August 24, 2016, they settled

Calero's claim.    The order approving settlement established a twenty-five

percent partial disability, a stipulated weekly wage of $276.17, and a


1
   Without explanation, Target's first point, as stated in its table of contents,
about "fairness and public policy," which it concedes was not raised below, does
not appear later in the brief. It is replaced by the argument that the vacating of
the order was against statutory and case law. We therefore do not consider the
argument identified in the table of contents. See Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234 (1973) (addressing arguments not raised before the trial
judge); see also N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501,
505 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived upon
appeal.").
                                                                           A-2650-18T3
                                        2
permanency rate not to exceed $193.32. The settlement was placed on the record

before the judge of compensation, and an order approving settlement was signed

by the judge and both parties.

      In December 2016, after securing new counsel, Calero filed a motion for

reconsideration of the order. In her motion, Calero argued that her wages were

calculated incorrectly at the time the earlier order was entered. In support of her

application, Calero submitted wage statements demonstrating her wages were

higher than contemplated in the order approving settlement. Citing to Katsoris

v. S. Jersey Publ'g Co., 131 N.J. 535 (1993), she contended that the wages should

have been reconstructed based upon full time wages because she suffered a

permanent injury while working, which prevented her from continuing to work

full time. Calero specifically sought the vacating of the earlier order and asked

that her wages be reconstructed based on a forty-hour week.

      At an initial hearing held on July 11, 2018, the judge of compensation

granted Calero's application. In his oral decision placed on the record that day,

the judge turned to Rule 4:50-1 to consider whether Calero established a basis

for relief from the earlier order. The judge stated that he viewed the application

to have been filed under subsection (a) of the Rule "which involves mistake,

inadvertent surprise or excusable neglect." He framed the issue as whether


                                                                           A-2650-18T3
                                        3
Calero's attorney at the time made a mistake that would warrant vacating the

order under consideration.    He also considered Calero's application under

subsection (f), which he described "as the catchall phrase" that would justify

granting "relief from the operation of the judgment or order."

      The judge concluded that it appeared "that there [was] some basis that

there's a colorable argument to be made with respect to wage reconstruction."

The judge turned to Target's opposition and concluded it would suffer no

prejudice because he was not going to "reopen the aspect of the percentage of

disability" issue and by doing so there would be no need to schedule any

"additional exams." The judge found that under the circumstances relief was

warranted under both subsections (a) and (f). The judge limited the issue to

"whether or not the wages were accurately calculated at the time the settlement

was entered." He only vacated the part of the order approving settlement with

respect to the "weekly wages."

      The judge of compensation conducted a hearing on September 12, 2018,

for the purpose of taking testimony on the issue of wage reconstruction. At the

beginning of the hearing, the judge made clear again that the matter was limited

to whether "there should be a wage reconstruction" and not to address

"permanency or any other issue related to [the] matter."


                                                                        A-2650-18T3
                                       4
        At the hearing, Calero testified to her job with Target, noting that she was

originally hired on a full-time basis. She explained that before the accident,

although she was hired to work full time, she "work[ed] the hours that were

posted" for her. It was only after the accident that she was no longer able to

work.     Although she attempted to work some hours after being injured,

eventually she could not, and her hours were continually reduced until there was

no longer any work for her to perform. Since then she has never been employed.

        Calero acknowledged on cross-examination that although she considered

herself a full-time employee, before the accident her hours varied. Sometimes

she worked more than forty hours, while other times she barely worked more

than twenty hours per week. She attributed the fluctuations to her filling in when

other employees could not appear for work as scheduled. She confirmed that

"most of the time" when she worked, it was more than forty hours. In response

to further questioning by the judge of compensation, she confirmed that she was

always available to work for forty hours per week.

        After Calero rested, Target did not produce any evidence at the hearing.

It offered neither testimony nor documents in response to any of Calero's

contentions.     After allowing time for additional briefing, the judge of




                                                                            A-2650-18T3
                                          5
compensation issued his oral decision on January 16, 2019, reconstructing

Calero's wages.

         In his decision, the judge based his findings of fact on Calero's

uncontroverted testimony and found that she was a full-time hourly employee,

hired at the rate of approximately $11.50 per hour. He determined that because

of her injuries, initially she could no longer work full-time and after a few

months "stopped working completely," and thereafter was never employed

again.

         The judge then addressed the applicable law. Turning to N.J.S.A. 34:15-

37 that defined wages, he quoted from the statute's description of how the daily

wage is calculated for hourly wage employees. He then addressed the holding

in Katsoris and identified the question before him as whether "there [was]

credible evidence in this case of a permanent impact on future full-time wage-

earning capacity in order to reconstruct . . . [Calero's] wages." Applying the

controlling law, he concluded that he could not "think of a more fitting

scenario, . . . given the facts of this case that calls out for a wage reconstruction."

He granted the motion and reconstructed Calero's wages to reflect a weekly

wage of $460 per week based upon a forty-hour work week at $11.50 per hour.




                                                                               A-2650-18T3
                                          6
He noted that that would result "in a gross permanency award of $67,620." This

appeal followed.

      Our scope of review of a workers compensation decision is limited to

"whether the findings made could reasonably have been reached on sufficient

credible evidence present in the record, considering the proofs as a whole, with

due regard to the opportunity of the one who heard the witnesses to judge of

their credibility," Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262

(2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), and "due

regard also to the agency's expertise." McGory v. SLS Landscaping, __ N.J.

Super. __, __ (App. Div. 2020) (slip op. at 17) (quoting Hersh v. Cty. of Morris,

217 N.J. 236, 242 (2014)); see also Renner v. AT&T, 218 N.J. 435, 448 (2014)

(explaining that our review of the "factual findings by a judge of compensation

is limited").

      We defer to the judge of compensation's factual findings "unless they are

'manifestly unsupported by or inconsistent with competent[,] relevant and

reasonably credible evidence as to offend the interests of justice.'" McGory, __

N.J. Super. __ (slip op. at 18) (quoting Lindquist, 175 N.J. at 262). Therefore,

even if it may be inclined to do so, an appellate court "may not substitute [its]

own factfinding for that of the [j]udge of [c]ompensation." Lombardo v. Revlon,


                                                                          A-2650-18T3
                                        7
Inc., 328 N.J. Super 484, 488 (App. Div. 2000). "However, 'interpretation of

the law and the legal consequences that flow from established facts are not

entitled to any special deference.'" Renner, 218 N.J. at 448 (quoting Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

      Our review is also guided by the principles underlying the Workers

Compensation Act, N.J.S.A. 34:15-1 to -146. The Act provides an exclusive

remedy for injuries sustained in an "accident arising out of and in the course of

employment." N.J.S.A. 34:15-7. Our State's comprehensive statutory scheme

of workers compensation coverage "for the compensation of injured workers 'is

remedial social legislation and should be given liberal construction in order that

its beneficent purposes may be accomplished.'"            Cruz v. Cent. Jersey

Landscaping, Inc., 195 N.J. 33, 42 (2008) (quoting Torres v. Trenton Times

Newspaper, 64 N.J. 458, 461 (1974)). "We have long recognized that [the Act]

is remedial legislation and should be given liberal construction in order that its

beneficent purposes may be accomplished."         Kocamowski v. Township of

Bridgewater, 237 N.J. 3, 10 (2019) (quoting Estate of Kotsovska v. Liebman,

221 N.J. 568, 584 (2015)).

      It is an "axiomatic principle that the language of the [Act] must be

liberally construed in favor of the claimant."      Close, 44 N.J. at 604.       In


                                                                          A-2650-18T3
                                        8
considering questions relating to workers compensation in general, we have

adhered to our understanding that "[t]he ultimate purpose . . . is to provide a

dependable minimum of compensation to ensure security from want during a

period of disability." Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 31

(2006) (quoting Naseef v. Cord, Inc., 48 N.J. 317, 325 (1966)).

        Under the Act, N.J.S.A. 34:15-372 "authorize[s] wage reconstruction for

calculation of wages for determination of benefits for partial permanent

disability." McMonegal v. E & B Mgmt. Corp., 214 N.J. Super. 481, 484 (App.

Div.), vacated in part on other grounds, 216 N.J. Super 312, 523 (App. Div.


2
    The statute states in pertinent part the following:

              When the rate of wages is fixed by the hour, the daily
              wage shall be found by multiplying the hourly rate by
              the customary number of working hours constituting an
              ordinary day in the character of the work involved. In
              any case the weekly wage shall be found by multiplying
              the daily wage by the customary number of working
              days constituting an ordinary week in the character of
              the work involved; provided, however, if the employee
              worked less than the customary number of working
              days constituting an ordinary week in the character of
              the work involved, the weekly wage for the purposes of
              compensation under provisions of R.S. 34:15-12a only
              shall be found by multiplying the hourly rate by the
              number of hours of work regularly performed by that
              employee in the character of the work involved.

              [N.J.S.A. 34:15-37.]
                                                                        A-2650-18T3
                                          9
1986), corrected by 217 N.J. Super 18 (App. Div. 1987); see also Katsoris, 131

N.J. at 543. Reconstruction entails a two-step process. First the judge must

determine if a petitioner "work[ed] fewer than the customary number of days

constituting an ordinary week in the character of the work involved" at the time

the injuries were sustained. Katsoris, 131 N.J. at 545. The judge must then

consider whether the petitioner's disability "represents a 'loss of earning

capacity, i.e., a diminution of future earning power,' or[] . . . whether the

disability 'reaches into the future' and affects 'probable future earning capacity'

or has an 'impact on probable future earnings.'" Id. at 547-48 (citations omitted).

Thus, "[t]he critical inquiry is whether petitioner has demonstrated that her [or

his] injuries, which disable[d] her [or him] from engaging in part-time

employment, have disabled or will disable her [or him] with respect to her [or

his] earning capacity in contemporary or future full-time employment." Id. at

548.

        Applying these guiding principles, we consider Target's first argument.

According to Target, because Calero's application did not fall within the limited

circumstances for vacating an order under the Act, N.J.S.A. 34:15-27,3 and Rule


3
    The statute states the following:



                                                                           A-2650-18T3
                                        10
4:50-1 did not apply, reversal is warranted. Target relies on the Act and argues

that the judge of compensation was without authority to consider opening the

consent order either under the Act or under Rule 4:50-1(a) or (f). We disagree.

      At the outset, we observe that Target did not argue before the judge of

compensation, as it does now, that N.J.S.A. 34:15-27 barred Calero's

application. In fact, Target conceded, without any reference to the Act, that the

application was appropriate under Rule 4:50-1 but argued it should not have

been granted because Calero did not establish her entitlement to relief under the

Rule. For that reason, we will not consider it on appeal. See Nieder, 62 N.J. at

234. Even if we did, we would find no error because regardless of the Act's



            An agreement for compensation may be modified at any
            time by a subsequent agreement. Upon the application
            of any party, . . . or [an] order approving settlement
            may be reviewed within two years from the date when
            the injured person last received a payment on the
            ground that the incapacity of the injured employee has
            subsequently increased. If a party entitled to a review
            under this section shall become mentally incapacitated
            within the two-year period, the mental incapacity shall
            constitute grounds for tolling the unexpired balance of
            the two-year period, which shall only begin to run again
            after the party returns to mental capacity. An . . . order
            approving settlement may be reviewed at any time on
            the ground that the disability has diminished.

            [N.J.S.A. 34:15-27.]


                                                                         A-2650-18T3
                                       11
provisions, a judge of compensation has inherent authority to open judgments

or orders in the interest of justice and that decision will not be disturbed absent

an abuse of discretion. See DEG, LLC v. Township of Fairfield, 198 N.J. 242,

261 (2009); Beese v. First Nat'l Stores, 52 N.J. 196, 200 (1968); see also Estelle

v. Bd. of Educ. of Red Bank, 14 N.J. 256, 261 (1954); Stone v. Dugan Bros. of

N.J., Inc., 1 N.J. Super. 13, 16-17 (App. Div. 1948).

      Moreover, N.J.S.A. 34:15-27 addresses a claim of increased incapacity

caused by the work-related injury, an issue that was not pertinent to Calero's

application. We discern no abuse of discretion here for the reasons stated by the

judge of compensation. See DEG, LLC, 198 N.J. at 261 (explaining that Rule

4:50-1 applies to a consent judgment, which 'is an agreement that the parties

desire and expect will be reflected in, and be enforceable as, a judicial decree

that is subject to the rules generally applicable to other judgments and decrees.'"

(quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378 (1992))); Lee

v. W.S. Steele Warehousing, 205 N.J. Super. 153, 156-158 (App. Div. 1985);

Hyman v. Essex Cty. Carpet Cleaning Co., 157 N.J. Super. 510, 516-17 (App.

Div. 1978).

      We are not persuaded to the contrary by Target's next argument. In its

second point, Target avers that the order allowing for reconstruction was


                                                                           A-2650-18T3
                                       12
erroneous. It contends that by forcing it to relitigate Calero's claim, its ability

to defend was "unfairly compromised." Target also claims that it was unfairly

required to "incur additional and unforeseen litigation expenses to defend [the]

settlement" which created "a tangible and significant harm."

      Notably, Target did not argue before the judge of compensation or now

before us, that had reconstruction been raised by Calero in the settlement

discussions that led to the consent order, she would not have been entitled to the

application of reconstruction to her wages. It also does not contend that the

calculation performed by the judge after the hearing was erroneous. Target only

focuses on the prejudice it allegedly suffered as a result of the application of

reconstruction, which it identified as having to pay Calero more than agreed to

in the order approving settlement after it had already paid a significant amount

of what was previously agreed upon.

      In his decision, the judge of compensation weighed the prejudice suffered

by both parties before reaching his conclusion that opening the judgment was

appropriate prior to his ultimate decision to recalculate wages. That decision

was supported by the record.

      We find Target's arguments to the contrary to be without sufficient merit

to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(D), especially


                                                                           A-2650-18T3
                                       13
in light of the fact that at the evidentiary hearing, Target offered absolutely no

evidence to refute Calero's proofs or to establish that the alleged substantial

prejudice Target suffered outweighed that which Calero experienced by not

having her award properly determined.

      Affirmed.




                                                                          A-2650-18T3
                                       14
