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

NOT FOR PUBLICATION WITHOUT THE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.
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A-2650-18T3

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.").
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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 
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A-2650-18T3

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."
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A-2650-18T3

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 
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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 wageearning 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. 
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A-2650-18T3

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,
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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 
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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.]
10 A-2650-18T3

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. 34:15-27,3and Rule

 

3

 The statute states the following:
11 A-2650-18T3

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.]
12 A-2650-18T3

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 
13 A-2650-18T3

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 
14 A-2650-18T3

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.