The case involves a worker who injured his knee twice at work while working for separated employers and resulting in a total permanent disability award. The first employer settled the workers’ compensation case by reimbursing the second employer $21,000 for medical treatment. The second employer settled the case for a total permanent disability and had to pay ongoing and future medical expense amounting to over $1.1 Million.
The second employer’s workers’ compensation insurance carrier asserted a lien of over $1.1 Million against the Federal Court (civil/tort action) recovery.
The injured worker challenged the lien and went back to the Judge of Compensation and claimed: 1. The Federal Court recovery was for the medical condition of the first accident; and 2. The Federal Court recovery was for spouse’s per quod recovery[1] and not subject to the lien.
The Judge of Compensation dismissed the injured worker’s challenge to the lien.[2]
The NJ Appellate Court affirmed the Judge of Workers’ dismissal of the employee’s challenge to the lien. It held the second employer’s workers’ compensation insurance company could have the lien.
A. The court reasoned that the Judge of Compensation’s findings that the medical treatment was rendered following from the second accident was a correct finding it would not disturb the decision.
B. The NJ Appellate Court also stated that the Judge of Workers’ compensation did not have authority or jurisdiction to make an allocation of the lien as to what portion amounted to the per quod/loss of consortium.
C. An allocation should have been made by the Federal Court at the time of the settlement.
D. The NJ Appellate Court also suggested that the second employer’s workers’ compensation insurance company should have been a party to the settlement when the Federal Court (civil/tort action) was resolved.
Sansone v. Village Supermarket, Inc., DOCKET NO. A-3638-17T1, 2019 WL 1959600 (N.J. App. Div. 2019). Deided May 2, 2019.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
….
Jon L. Gelman of
Wayne NJ is the author of NJ
Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the
national treatise, Modern
Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades
the Law
Offices of Jon L Gelman
1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
[1] “Loss of consortium is a term used in
the law of torts that refers to the
deprivation of the benefits of a family relationship due to injuries caused by
a tortfeasor. Loss of consortium arising
from personal injuries was recognized under the English common law. For
example, in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover
for his loss of consortium while his wife languished after a
carriage accident. However, once she died from her injuries, his right to
recover for lost consortium ended. After the enactment of the Lord Campbell's Act (9 and 10 Vic. c. 93)
the English common law continued to prohibit recovery for loss of consortium
resulting from the death of a victim. The availability of loss of consortium
differs drastically among common law jurisdictions and does not exist at all in several of
them. Damages for loss of consortium are considered separately from, and are
not to be confused with compensatory damages..” Source: Wikipedia
[2] “The judge concluded that the order resolving Sansone’s
second compensation claim finds she is totally permanently disabled as a result
of the second accident and Liberty Mutual is responsible for all of her future
medical expenses associated with her RSD/CRPS. The court also noted that the
expert report on which Sansone relied in opposition to Liberty Mutual’s motion,
and which attributed the RSD/CRPS largely to the first accident, was presented
by the third-party defendants in the federal court action. The report
contradicts the position taken by Sansone in that action, in which she sought
to attribute her damages to the negligence of the third-party defendants. The
judge found that after Sansone settled the third-party claims for $1 million,
“it’s difficult for me to accept that you can take the flip argument now when
it comes time to pay the lien[.]” In addition, the judge noted that “Liberty
Mutual went on to pay hundreds of thousands of dollars in medical treatment on
a continuing basis for all the things that [Sansone] alleged ... were related
to her [second] accident.” The judge found the ongoing medical treatment
provided by Liberty Mutual “was, in fact, related to” the second accident and,
therefore, should be subject to a lien in favor of Liberty Mutual.
“In addition, the judge concluded that while the spouse’s per quod
recovery is not subject to Liberty Mutual’s lien, the parties did not attribute
any of the settlement proceeds in the third-party action to his claims. Finding
that “there is nothing before me to even justify or consider what an
appropriate allocation would be,” the judge of compensation concluded he was
unable to “assess anything to a per quod claim, consortium claim.” The judge
also found that a hearing was not necessary to determine the amount of Liberty
Mutual’s lien because “the lien far exceeds funds available to reimburse it”
from the settlement. A March 15, 2018 order memorializes the judge of
compensation’s decision.” Sansone v. Village Supermarkets, Inc., Id.
