NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3770-18

 A-3792-18

 A-3797-18

 A-3798-18

GEORGE A. WILHELM,

Petitioner-Appellant,

v.

RYDER LOGISTICS & 

TRANSPORTATION SOLUTIONS

and SECOND INJURY FUND,

Respondents-Respondents.

THOMAS H. BOZARTH, SR.,

Petitioner-Appellant,

v.

BURLINGTON COUNTY and

SECOND INJURY FUND,

Respondents-Respondents.

JOSEPH SCHIAZZA,

Petitioner-Appellant,

v.

APPROVED FOR PUBLICATION

June 21, 2021

APPELLATE DIVISION
A-3770-18 2

WESTERN OILFIELD SUPPLY 

and SECOND INJURY FUND,

Respondents-Respondents.

WILLIAM E. PIERCE, JR.,

Petitioner-Appellant,

v.

CBF TRUCKING and

SECOND INJURY FUND,

Respondents-Respondents.

Argued April 19, 2021 – Decided June 21, 2021

Before Judges Currier, Gooden Brown and 

DeAlmeida.

On appeal from the New Jersey Department of Labor 

and Workforce Development, Division of Workers' 

Compensation, Claim Petition Nos. 1993-59037, 

1994-11045, 2002-18766, 2003-23322, and 2006-

33823.

Robert A. Petruzzelli argued the cause for appellants 

(Jacobs, Schwalbe and Petruzzelli, PC, attorneys; 

Robert A. Petruzzelli, on the briefs).

Cheryl B. Kline, Deputy Attorney General, argued the 

cause for respondent Second Injury Fund (Gurbir S. 

Grewal, Attorney General, attorney; Melissa H. Raksa, 

Assistant Attorney General, of counsel; Cheryl B. 

Kline, on the briefs).
A-3770-18 3

Walter F. Kawalec, III, argued the cause for 

respondent Ryder Logistics & Transportation 

Solutions (Marshall Dennehey Warner Coleman & 

Goggin, PC, attorneys, join in the brief of respondent 

Second Injury Fund). 

Kelly A. Grant argued the cause for respondent 

Burlington County (Malamut and Associates, LLC, 

attorneys; Kelly A. Grant, of counsel and on the brief).

Dominick Fiorello argued the cause for respondent 

Western Oilfield Supply (Styliades & Jackson, 

attorneys; Dominick Fiorello, on the brief).

Susan Stryker argued the cause for respondent CBF 

Trucking (Bressler, Amery & Ross, PC, attorneys; 

Susan Stryker and Michael J. Morris, of counsel and 

on the brief).

The opinion of the court was delivered by

CURRIER, J.A.D.

In these four back-to-back appeals, we consider whether N.J.S.A. 34:15-

95.5 requires a triennial redetermination of petitioners' combined awards of 

state workers' compensation disability benefits and social security disability 

benefits (SSD). Because our Legislature did not include a cost-of-living 

increase in the statute, and 42 U.S.C. § 424a(d) explicitly states a triennial 

redetermination is not applicable in states that calculate their benefits in the 

manner New Jersey does, we affirm. Petitioners are not entitled to a 

redetermination of benefits.
A-3770-18 4

Petitioners each collect total and permanent disability workers' 

compensation benefits and SSD. Pierce and Schiazza's applications for SSD 

benefits were on appeal when they received their total disability orders. 

Wilhelm's application for SSD benefits was pending. Each final order required 

petitioner to "immediately notify the [r]espondent and Second Injury Fund" if 

SSD is approved. And "[t]he petitioner shall reimburse the [r]espondent and 

the Second Injury Fund for any workers' compensation benefits paid to 

[p]etitioner in excess of the offset rate during the period of time [p]etitioner 

has received [SSD] . . . ." 

After Schiazza, Pierce, and Wilhelm were approved for SSD, the Second 

Injury Fund (Fund) moved for reimbursement of the excess benefits paid prior 

to application of the statutory offset. Petitioners opposed reimbursement and 

sought a recalculation of their benefit rates to include a triennial 

redetermination of their average current monthly earnings (ACE). Bozarth 

moved to reopen his case, also seeking a redetermination of his benefits.1

The cases were consolidated and tried before the judge of compensation 

over several dates in 2016 and 2017.

1 Unlike the other petitioners, Bozarth was approved for SSD prior to the entry 

of the final order. Therefore, the order included the reduced rate according to 

the reverse offset with benefits calculated until April 2022, when Bozarth turns 

sixty-two.
A-3770-18 5

The Fund produced Larry Crider as its witness. At the time of trial in 

2016, Crider had been the Administrator of Special Compensation Funds for 

the New Jersey Department of Labor since 1990. The office administers both 

the Fund and the Uninsured Employer's Fund, handles compliance enforcement 

for workers' compensation insurance, and operates the discrimination 

complaint division. 

In 1980, Crider became involved in the processing of calculations for the 

Fund under the Workers' Compensation Act in conjunction with the social 

security offset under N.J.S.A. 34:15-95.5. At that time, he was working for 

the controller's office as an assistant controller when he was tasked to assist 

the Division of Workers' Compensation in "implementing . . . the special 

adjustment benefits, which included the offsets." Crider worked with 

compensation judges Alan Napier and Michael Cunningham. 

Crider testified he and the judges agreed that the formula enunciated in 

N.J.S.A. 34:15-95.5 requires an offset if the "total of the weekly worker's 

compensation benefits and the weekly equivalent of the social security benefit 

exceed[s] [eighty] percent of the ACE." The statute did not include any costof-living increases. According to Crider, the legislative history did not reflect 

any intent to include a triennial review associated with the offset calculation. 
A-3770-18 6

Crider recalled that in 2004 or 2005, an attorney sent a letter to the 

Office of Special Compensation Funds inquiring whether petitioners under the 

age of sixty-two receiving total and permanent disability and SSD were 

entitled to a triennial redetermination of ACE. After receiving the letter, the 

Director of the Division of Workers' Compensation, Chief Judge Calderone,

asked for Crider's input. Crider requested that Glenn Sklar, the Associate 

Commissioner of Disability Programs at the Social Security Administration, 

provide clarification whether a triennial redetermination of ACE was 

applicable in reverse offset states. Crider also conducted his own research. 

In Sklar's response to Crider's query, the Associate Commissioner 

confirmed that Social Security was precluded from taking a reduction in SSD 

in a reverse offset state. In addition, the Social Security operations manual 

instructed that a reverse offset existed for permanent total disability and 

subsequent Fund benefits in New Jersey. 

Crider concluded that N.J.S.A. 34:15-95.5 did not support a triennial 

redetermination. He also noted that 42 U.S.C. § 424a(d) specifically excluded 

a reverse offset state from performing a triennial redetermination. 

During his trial testimony, Crider also explained the method for 

calculating the offset for each of the petitioners' awards and stated the 

calculations were accurate and in compliance with N.J.S.A. 34:15-95.5. 
A-3770-18 7

Petitioners presented Alan Polonsky as a witness – an attorney with 

thirty years of experience handling Social Security benefits claims. Polonsky 

was a staff attorney at the Social Security Administration Office of Hearing 

and Appeals for approximately ten years, where he drafted decisions for an 

administrative law judge determining whether individuals were disabled. He 

left that position in 1987 and entered private practice where he began

representing social security claimants, primarily litigating disability 

determinations, eligibility for benefits, and verifying whether the benefits are 

being properly paid. Polonsky said he uses a computer application to calculate 

benefits.

Polonsky agreed he had no experience drafting social security legislation 

or promulgating rules for the Social Security Administration or in the workers' 

compensation arena. He admitted he did not handle workers' compensation 

cases and had limited involvement in the application of the workers' 

compensation statutes. 

Polonsky testified similarly to Crider regarding the calculation of 

benefits when a petitioner is receiving both SSD and workers' compensation 

benefits. He confirmed that if the total benefits exceed what the petitioner 

earned before becoming disabled, the benefits award is capped at eighty 

percent of the petitioner's earnings before they became disabled – the ACE. 
A-3770-18 8

He explained the cap was in place to ensure petitioners were not making more 

money than they did pre-disability so that petitioners would not be dissuaded 

from returning to the workforce. 

Polonsky likened the triennial redetermination of the ACE to a cost-ofliving adjustment. He also explained that reverse offset meant "that instead of 

the Social Security Administration reducing the Social Security benefits, the 

Social Security Administration pays the full benefit they would pay, and the 

insurance carrier is the one that gets the benefit of the reduction in payment." 

In a reverse offset state, the workers' compensation benefits are reduced, not 

the SSD.

Polonsky conceded he had never seen a triennial redetermination applied 

to a petitioner under age sixty-two who was receiving New Jersey total 

disability and permanent workers' compensation benefits. And he agreed that 

because New Jersey is a reverse offset state, triennial redetermination would 

not be applicable. 

In a comprehensive, well-reasoned oral decision issued December 13, 

2018, the judge of compensation found N.J.S.A. 34:15-95.5 did not compel a 

triennial redetermination of ACE to a person collecting permanent workers' 

compensation benefits and SSD. The compensation court noted N.J.S.A. 

34:15-95.5 did not mention a triennial redetermination of ACE. Nor did the 
A-3770-18 9

legislative history accompanying the statute. Therefore, the judge of 

compensation concluded the Legislature did not intend either a cost-of-living 

increase or a triennial redetermination. The judge discerned no conflict 

between federal and state law and stated that "N.J.S.A. 34:15-95.5 supersedes 

and takes precedence over the manner that New Jersey is to interpret its own 

statute." 

The compensation court relied on several authorities in reaching its 

determination. One of the authorities was the Social Security Administration's 

program operations manual system, which contains the Social Security 

Administration's policies. The manual advises that a reverse offset exists in 

New Jersey for claimants receiving permanent total disability workers'

compensation benefits and SSD. In addition, the compensation court noted the 

portion of Sklar's letter which stated: "[A] Triennial Redetermination of ACE 

is unnecessary prior to the age of [sixty-two] because full disability insurance 

benefits are already being paid due to the reverse offset provisions, therefore, 

there is no offset applied." 

The compensation court found petitioners did not present any controlling 

authority to support their claim that 42 U.S.C. § 424a(f) mandated New Jersey 

to conduct a triennial redetermination of ACE. To the contrary, the court 

found petitioners disregarded the provision in 42 U.S.C. § 424a(d) stating that 
A-3770-18 10

triennial redetermination of ACE is not applicable in reverse offset states such 

as New Jersey. 

The compensation court denied petitioners' motions for a triennial 

redetermination and granted respondents' and the Fund's motions for the SSD 

offset and for reimbursement of any overpayments.

On appeal, petitioners renew their argument that they are entitled to a 

triennial redetermination of ACE under N.J.S.A. 34:15-95.5 until they reach 

the age of sixty-two. They contend the statute does not comply with 42 U.S.C. 

§ 424a(f).

The Fund raises a procedural bar, contending petitioners are precluded 

from asserting the triennial redetermination issue because it was not presented 

prior to the entry of their total disability awards. In addition, respondents all 

assert there is no support in the statutory language or legislative history of 

N.J.S.A. 34:15-95.5 for a triennial redetermination of ACE.

Although counsel discussed the procedural bar with the judge of 

compensation during oral argument, the court did not address the issue in its 

decision. 

An order approving settlement is final and bars "any subsequent action 

or proceeding, unless reopened by the Division of Workers' Compensation or 

appealed . . . ." N.J.S.A. 34:15-58. The right to reopen a matter is established 
A-3770-18 11

in N.J.S.A. 34:15-27, which provides that "a formal award, determination, 

judgment, or 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." Ibid.

A judgment or award also may be re-opened "at any time on the ground that 

the disability has diminished." Ibid. 

Here, petitioners were awarded total and permanent disability benefits 

through orders approving settlements. Bozarth and Wilhelm have collected 

benefits since 2003 and 2004 respectively. Schiazza and Pierce began 

collecting benefits in 2009 and 2010. None of the petitioners raised the 

triennial redetermination issue prior to the entry of their total and permanent 

disability awards. Nor have any of the petitioners argued their disability has 

subsequently increased or diminished.

Although it is evident petitioners do not meet the statutory criteria to 

reopen their cases, we nonetheless address the substantive issue petitioners 

present as it is an issue of first impression in this state. 

When reviewing a workers' compensation decision, we are required to 

determine whether the "findings reasonably could have been reached on the 

basis of sufficient credible evidence in the record, with due regard to the 

agency's expertise." Wood v. Jackson Twp., 383 N.J. Super. 250, 253 (App. 
A-3770-18 12

Div. 2006). We afford deference to an agency's expertise and knowledge in its 

field but will not defer if the agency's statutory interpretation is inaccurate or 

contrary to the legislature's intent. Caminiti v. Bd. of Trs., 431 N.J. Super. 1, 

14 (App. Div. 2013). The party challenging the decision bears the burden to 

prove the decision was not based on sufficient credible evidence. In re Protest 

of Coastal Permit Program Rules, 354 N.J. Super. 293, 330 (App. Div. 2002).

When interpreting a statute, the primary purpose is to discern the 

Legislature's intent. Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 (2019). 

The best method to determine the intent is to consider the statute's plain 

language, ascribing to the words their ordinary meaning when viewed as a 

whole. DiProspero v. Penn, 183 N.J. 477, 492 (2005). The function of the 

court is not to re-write the statute, presume the intent of the legislature, or add 

qualifications, but rather "to construe and apply the statute as enacted." Ibid.

(quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). If 

the statute is susceptible to more than one plausible interpretation, leads to an 

absurd result, or is at odds with the plain language, courts may turn to extrinsic 

aids such as "legislative history, committee reports, and contemporaneous 

construction." Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 

182 N.J. 64, 75 (2004)). 
A-3770-18 13

Under 42 U.S.C. § 424a, a petitioner is limited to the amount they can 

simultaneously collect from SSD and state workers' compensation benefits. If 

the combined total monthly amount of SSD and state workers' compensation 

benefits exceeds eighty percent of the petitioner's pre-disability ACE earnings, 

SSD is reduced. The reduction of SSD is known as the social security offset. 

Social Security receives the benefit of the offset. Woods, 383 N.J. Super. at 

254.

However, a handful of states, including New Jersey, enacted laws 

authorizing the reduction of the workers' compensation award instead of SSD 

when determining the simultaneous collectability of benefits. These states are 

known as reverse offset states. Therefore, in New Jersey, the employer, 

workers' compensation insurer, and Fund receive the benefit of the offset, not 

Social Security.

The Omnibus Budget Reconciliation Act of 1981 prevented additional 

states from enacting reverse offset legislation. 42 U.S.C. § 424a (1981). 

However, it permitted states which had enacted reverse offset provisions on or 

before February 18, 1981 to keep the reverse offset in effect. Ibid. New 

Jersey was one such state.
A-3770-18 14

As stated, in 1980, the New Jersey Legislature amended the workers' 

compensation statute and adopted the reverse offset provision. N.J.S.A. 34:15-

95.5 states:

For persons under age [sixty-two] receiving benefits 

as provided under R.S. 34:15-95.5, or R.S. 34:15-

12(b), and whose period of disability began after 

December 31, 1979, such compensation benefits shall 

be reduced by an amount equal to the disability 

benefits under the Federal Old-Age, Survivors' and 

Disability Insurance Act, as now or hereafter 

amended, not to exceed the amount of the reduction 

established pursuant to 42 U.S.C. 424a. However, 

such reduction shall not apply when the combined 

benefits provided under R.S. 34:15-95, or R.S. 34:15-

12(b), and the Federal Old-Age, Survivors' and 

Disability Insurance Act is less than total benefits to 

which the Federal reduction would apply, pursuant to 

42 U.S.C. 424a.

As explained by Crider and Polonsky, under the statute, an individual in New 

Jersey receiving permanent total disability or Fund benefits, whose disability 

benefits began after December 31, 1979, is subject to the reverse offset until 

the person reaches the age of sixty-two.2 The statute does not include a 

triennial redetermination of benefits. 

42 U.S.C. § 424a(f) provides for a redetermination of the social security 

offset every three years. This triennial redetermination is akin to a cost-of2 After a petitioner turns sixty-two, Social Security takes the offset until the 

petitioner is sixty-seven years old. Thereafter, the offset is no longer in effect 

and a petitioner keeps the full amount of the benefits. 42 U.S.C. § 424a(a).
A-3770-18 15

living adjustment to raise the eighty percent cap every three years using a ratio 

established by the Commission of Social Security based on the national 

average wage index. 

Petitioners contend our Legislature intended to adopt the federal 

triennial redetermination provision. However, the plain language of N.J.S.A. 

34:15-95.5 does not include a redetermination of benefits. And the legislative 

history is similarly silent. See Sponsor's & Lab. Comm. Statement to A. 1206

1-17 (L.1980, c. 83). 

Moreover, the federal statute acknowledges the reverse offset states and 

precludes a social security offset for those states. 42 U.S.C. § 424a(d) creates 

an exception to the social security offset for reverse offset states. See Ries v. 

Harry Kane, Inc., 195 N.J. Super. 185, 197 (App. Div. 1983). 

Our Legislature did not include any redetermination of benefits or costof-living provision in N.J.S.A. 34:15-95.5, nor has it amended the controlling 

statute in the forty years since its enactment. It is not this court's province to 

rewrite a statute contrary to its plain meaning. Perrelli v. Pastorelle, 206 N.J. 

193, 200 (2011). 

Moreover, Crider and Polonsky agreed the offset is in place to limit a 

petitioner's benefits so a totally disabled petitioner cannot earn more than his 

or her pre-injury income. This counters the argument that the Legislature 
A-3770-18 16

intended to include a cost-of-living increase. In addition, as we have 

previously noted, the Fund's resources are limited. We would not impose 

additional financial obligations absent a legislative mandate to do so. See

McAllister v. Resorts Int'l Hotel & Casino, 299 N.J. Super. 199, 202-03 (App. 

Div. 1997).

There is no conflict between federal and state law. Under the Omnibus 

Budget Reconciliation Act of 1981, Congress and the Social Security 

Administration confirmed that § 424a did not preempt a state's workers' 

compensation act. 42 U.S.C. § 424a. In addition, the Supreme Court has 

clarified that if there is any overlap between a federal disability insurance 

program and a state workers' compensation program, "workmen's 

compensation programs should take precedence in the area of overlap." 

Richardson v. Belcher, 404 U.S. 78, 82 (1971). 

In sum, it is clear from a review of the plain language of N.J.S.A. 34:15-

95.5 and 42 U.S.C. § 424a that a triennial redetermination of ACE is not 

applicable in New Jersey as a reverse offset state. As petitioners have not 

presented this court with any concrete legal or legislative grounds upon which 

to overturn the compensation judge's order, we affirm the order denying a 

redetermination of benefits and for reimbursement of overpayment of benefits.

Affirmed.