SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1596-00T5
DANIEL AVILA,
Petitioner-Respondent,
v.
RETAILERS & MANUFACTURERS DISTRIBUTION,
Respondent-Appellant.
_____________________________________________________________
Argued October 28, 2002 - Decided November 27, 2002
Before Judges Petrella,See footnote 11 Braithwaite and Parker.
On appeal from a judgment of the Division of
Workers' Compensation, New Jersey Department
of Labor, 98-033075.
David P. Kendall argued the cause for appellant
(Francis T. Giuliano, attorney; Mr. Kendall
and Mr. Giuliano, on the brief).
Ilona Shmaruk argued the cause for respondent
(Garces & Grabler, attorneys; Mark S. Garber,
on the brief).
The opinion of the court was delivered by
PARKER, J.A.D.
Respondent appeals from a workers' compensation judgment of
five percent permanent partial orthopedic disability in favor of
the petitioner. Respondent admitted that petitioner suffered an
accident during his employment, but disputed whether it resulted in
a compensable permanent injury. In this appeal, respondent argues
(1) that the judge should have stayed the judgment pending appeal;
(2) defendant did not prove a permanent partial disability within
the meaning of
48 N.J. Super. 566, 579
(App. Div.) aff'd,
28 N.J. 73 (1958). In Gosschalk, we noted that
"[t]he granting of a stay is discretionary with the trial court,
limited only by special equities showing abuse of discretion in
that injustice would be perpetrated on the one seeking the stay,
and no hardship, prejudice or inconvenience would result to the one
against whom it is sought." Id. at 579.
Respondent proposes that we adopt a new standard for stays of
workers' compensation awards, suggesting that stays be routinely
granted when (1) the award is small; (2) the employee is working
full time and not, therefore, in a hardship situation; (3) no
temporary benefits are awarded; and (4) the medical bills have been
paid. Respondent argues that stays of workers' compensation awards
should be granted under those circumstances because compensation
carriers increase the employers' premiums when awards are paid.
Respondent further argues that it may be difficult to collect the
payment if the award is reversed on appeal.
As we noted in Gosschalk, the traditional standard for the
granting of a stay by a trial court is discretionary and dependent
upon the equities of a given case. We measure the equities by the
standard utilized in the granting of a preliminary injunction,
i.e., (1) whether irreparable harm will result from enforcement of
a judgment pending appeal; (2) whether a meritorious issue is
presented; and (3) the likelihood of success on appeal. Crowe v.
DeGioia,
90 N.J. 126, 133 (1982).
The mere fact that the workers' compensation carrier increases
the employer's premiums upon the payment of an award, does not
constitute a manifest injustice or irreparable harm. It is
completely within the control of the carrier to withhold the
increase in premiums until after the appeal process is exhausted.
Moreover, there is no factual basis here to support respondent's
claim that the payment may be difficult to collect if the employer
prevails on appeal. Respondent has not persuaded us that there is
any viable reason for adopting a new standard for stays of workers'
compensation awards. We find no abuse of discretion in denial of
the stay in this case.
With respect to respondent's remaining arguments, our scope of
review is limited to whether the findings made could reasonably
have been reached on sufficient credible evidence in the record,
giving "due regard" to the factfinder's determinations of
credibility. Close v. Kordulak Bros.,
44 N.J. 589, 599 (1965). We
have carefully reviewed the record, and we are satisfied that there
was sufficient credible evidence to support a finding of five
percent permanent partial orthopedic disability. R. 2:11-
3(e)(1)(D).
Affirmed.