*1 “ testimony shifting stated, accept keeps on me.” ... I can’t added, hearsay “in to make this trial order The court later credible, underlying independent have to be some there would plaintiff.” lack of than the statement The evidence other may weight given plaintiff’s to be corroboration affect the admissibility. jury testimony, The will have to assess but not its whether, fact, truthfully plaintiff Walker informed denying employment. her supervisors’ reasons for judgment Appellate is affirmed. PORITZ, and For Justice Justices affirmance —Chief POLLOCK, O’HERN, HANDLER, and COLEMAN —6. STEIN Opposed—None. CLAIMANT-APPELLANT, SPERLING,
MARK BOARD REVIEW, OF RESPONDENT-RESPONDENT. Argued September 1998. 1998 Decided December (Aslani- Aslanian, Jr., Antranig argued appellant cause brief). Khorozian, attorneys; Sperling, pro on an Mark se & General, Grundfest, Attorney argued Deputy Andrea R. (Peter Verniero, Attorney respondent cause for General of New Yannotti, General, Jersey, attorney; Joseph Attorney L. Assistant counsel). *2 PER CURIAM. affirmed, judgment substantially for the reasons ex
pressed Division, in Judge opinion Appellate Baime’s of the re 1, (1997). ported N.J.Super. at 301 A.2d 901 STEIN, J., concurring. judgment
The Court affirms the below on the of basis the 1, Appellate opinion. majority Division’s 693 A.2d (1997). join I disposition briefly the but Court’s write to identify issue, argument, a collateral raised at oral Court’s disposition purport to resolve. personal injuries
Petitioner
sustained
circumstances
right
compensation
Compensation
which his
under the Workers’
Act,
-128,
zone,
twilight
N.J.S.A. 34:15-1 to
was “in
liability
compensation
dependent
under the
doubtful
on
law
the out-
Janovsky
proceedings.”
come of contested
v. American Motorists
(1952).
circumstances,
Ins.
In
N.J.
petitioner
temporary disability
would have been
to receive
entitled
of
pending
compensation
resolution
his workers’
claim.
43:21-30;
Janovsky, supra, 11
See N.J.S.A.
N.J. at
Before petitioner had in fact that if received May allegedly applied, until he October when compensation claim for a nominal his workers’ was settled when subrogation sum, right of would be limited the Division’s circumstance, compensation be- award. amount substantially petitioner’s temporary benefits would cause award, petitioner would receive benefits exceed injury. Accordingly, petitioner for the same under both statutes argued subsequent settlement an award period in which same eligible petitioner prior have been to receive them legislative plan. would not contravene Petitioner *3 nominal, compensation emphasized settlement that where claim, reflecting compensation requirement a weakness of the fully temporary that the Division for disabil- the worker reimburse ity substantially compensation excess benefits be self-defeating, be because workers would reluctant would gener- agree compensation if the settlement to settle claims liability ate of the amount received. excess General, Review, Attorney representing the Board of disa- greed, contending required that the statute full reimbursement of compensa- temporary by a worker who settles a benefits disparity irrespective paid tion claim of the between the benefits compensation and the amount of the workers’ settlement. Subse- Attorney quent argument oral the Court General informed that the Division has issued an Administrative Instruction direct- ing permitted claimants to retain be paid prior to a 20 settlement of a workers’ Section claim, compensation the settle- extent such benefits exceed Attorney ment. The General has advised Division to withdraw Instruction, believing it portion of Administrative to be contrary to law. petitioner temporary disability had not received bene-
Because claim, settling compensation my prior fits his workers’ view of disposition the Court’s is that it does question not resolve the whether a worker whose compensation settlement is less than the amount prior benefits received obligated the settlement nevertheless is to reimburse the Division expressing issue, in full. Without final view on that I note appears that there to be a substantial basis for the view right recovery Division’s would be limited to the amount of the compensation (“In settlement. See N.J.S.A. 43:21-30 the event that workmen’s subsequently ... are awarded for respect weeks with to which the claimant has received ..., the State fund ... shall be entitled to be subrogated to such claimant’s in such award to the extent disability payments amount of hereunder.”)(emphasis made added). (L. 306) (“There See also Statement to A. 216 c. ample provision under this subrogation repay section ... ment subsequent from a workmen’s pre award to benefits.”). clude double my
Based on understanding scope of the limited of the Court’s affirmance, I concur in disposition appeal. Court’s of this
O’HERN, J., concurring
part
dissenting
part.
I concur with Justice
understanding
Stein’s
of the limited
judgment.
breadth of the Court’s
Ante at
I *4 injury One who everyday suffers an between work and affairs may seek recovering benefits while from the injury Act, under either the Compensation Workers’ (comp), 34:15-1 to -128 Temporary Disability Law, or the Benefits (benefits law). N.J.S.A. 43:21-25 to -56 If a compensa- workers’ tion carrier coverage denies on the basis that the is not related, may work a claimant immediately commence an action receive benefits under Department the benefits law. The appeal Labor’s tribunal in quoted Janovsky this ease v. American Co., (1952), in Insurance 11 N.J. A.2d winch Motorists explained: the Court twilight law If is in a with zone, ... occurrence liability proceedings of contested immediate ..., doubtful and on the outcome dependent during be worker over his work should tide the payment help inability full reim- law, under the benefits and, indeed, readily available, permissible proceeding, award rendered any subsequently
bursement [(citation omitted).] “twilight dispute continues for us assume that such zone” Let court, during Compensation in the Workers’ six months or more disability temporary which has bene time worker recovered Assume, further, proceeding fits. that in a contested the Work was Compensation ers’ court decided that worker entitled disability only temporary on of a one month of account injury, and that other was work-related attributable setting, to other causes that were not work related. plan would entitled provides N.J.S.A. 43:21-30 that the benefits be “to award.” Because the “claim such claimant’s rights” were than the ant’s less award, simply to the plan the benefits recover award, but recover in full from the worker extent of disagree all received. The does not Court interpretation with that of N.J.S.A. 43:21-30.
II My disagreement with the concerns its conclusion case, timing because of the of events in this the result should be different. It is most unusual for this Court to dismiss a meritori Heretofore, sequence ous on the we basis claims. procedures governing management paral molded the of two programs justice the requirements lel benefit of fairness and recovery. overarching goal with the that there be no double should Property See Riccio Prudential & Cos. Ins. (1987) (discussing pursuit of tort claims in court observing essen insurance claims arbitration whole, purpose
tial relevant is “to make the victim but laws *5 provide a windfall or to recovery”); allow a double see also 42, Parks v. 49-51, Colonial Penn Ins. 98 N.J.
(1984) (molding procedures for management of automobile-repara- forums, arbitral). judicial tion claims in two Each forum must respect of the claimant the other forum. See Hetherington Coachlight, 484, v. Briarwood N.J.Super. 489- 90, 602 A.2d (App.Div.1992) (holding compensation workers’ judge was authority without to force PIP accept carrier to settle- right ment of its own to be reimbursed for claimed injury). for automobile accident disposition, its the Court makes no reference to the fairness procedures. No one could have foreseen that the settle- patently ment of a compensation unmeritorious workers’ would translate into a settlement of the meritorious disability claim. This an example “trap of a unsuspect- ing,” a jurisprudence school of recently by so condemned Justice Ambrose, Stein his dissent in Oliver v. (1998)
A.2d 742 (quoting Peyser, Cafferata (App.Div.1991)). 597A.2d 1101
A. language governing of neither supports position statute taken the Court. N.J.S.A. 34:15-20 parties states that when settlement, consented to a the settlement shall have the force and effect of a dismissal of the claim and shall be final petition right and conclusive ... and shall be a surrender of complete arising or other benefits out of such claim under the statute. made Any payments recognized this section shall be as of workers’ payments rating benefits for insurance only. purposes adjudication The Court converts that adjudi- of “dismissal” into an cation that person’s only the disabled are comp, paradox say settlement, the least. After N.J.S.A simply entitles the plan to reimbursement for rights” the “claimant’s in the award. It not disqualify one for having sought proved benefits that to be unavailable. Because (in there was no determination that the was work related *6 “dismissal”), fact, claim- adjudication an of this disabled there was to his to benefits attributable non-work- ant is entitled injury. related analogy judicial parallel
A
to the
administration of
close
is
reparations
tort and underin-
for
accident
claims
automobile
(UIM) regimes.
setting
In that
we
ruled
sured motorist
subject
Longworth
being given,
notice1
the
to
UIM benefits
Zirger
by judicial
of
tort claim.
provider
disposition
is bound
the
342,
144 N.J.
B. transcripts hearings injured To read the at which the represented experience worker first himself is futile the same “Kafkaesque journey” as does citizen who an encounters unrea- soning bureaucracy. Jersey Rosen v. New Div. Dev'l Disabili- ties, (App.Div.1992). legislative provisions. misunderstands At the first hearing, representative interpreted the Division N.J.S.A. 43:21-30 paid mean that no may if the be injured party receives other or It sickness benefits. quite even obvious to the most casual reader of title that its recovery, intends to full avoid double recov- ery. specific exists, Although provision purpose no offset *7 the recovery law demonstrates that for mutually workers’ is not exclusive. The title to N.J.S.A benefits,” “Nonduplication 43:21-30 is of not benefits.” “Election of The historical notes to N.J.SA recite that the benefits designed provide law is “to payment persons respect to certain to accident and sickness not compensable [comp] purpose the The of the act law.” “fill[ing] gap existing provisions protection includes the for against earnings by involuntary unemployment, the loss of caused by extending protection earnings the hazard of meet loss inability due to by nonoccupational to work caused or sickness accident.” N.J.S.A. 43:21-26. representative explain
When a Division was asked at the denied, hearing why Sperling’s disability second claim was he responded as follows: legal
A. We issued our because no denial the State has basis to the claimant pay against. since there is no for us lien to file a petition just a minute. And Q. that’s made the determination that Okay, why you you made? A That is correct. go originally.
A We must we had on claim form what repre- Division what the settlement It not matter might “twilight has be a once a claimant indicated there sents if acknowledged that Paradoxically, the zone” claim. Division award, no have his case and received he would worker had tried circumstances, those we would the benefits. “Under received paid him a lien since it would be considered without reasons, Better, it Compensation.” Division [workers’ nothing, a partial than to receive reimbursement should receive disability that part is work related. statute, misinterpreting the Division has also In addition Janovsky, swpra. misinterpreted this Court’s decision Janovsky “clearly appeal tribunal that The Court believes negates ‘any Compensation [worker’s] states that award’ from disability.” Nothing from payment of could be further State Janovsky, simply explained overriding truth. “the practical Janovsky, supra, 11 legislative plan operation.” and its “any simply at 1. The award” N.J. 93 A.2d Court’s reference signifies paid to worker there should that when benefits are plan] subsequently award [to be “full reimbursement Ibid, compensation proceeding.” (emphasis in the rendered add- ed). disqualification That is not a from benefits. N.J.S.A. 41:21- not mandate that prohibits duplication of benefits but does receipt benefits is mutually exclusive. Jersey Employ- Insurance v. New
Prudential Co. *8 430, 431, (1962), Security, ment 183 A.2d contrary a In that case not dictate result. an award was errone- ously plan period made under Title comp temporary disability during paid for an which a award was disability. “mutually permanent plans in The two were increase exclusive,” 440, only id. 183 A.2d in the that one is at sense periods disability not entitled Title benefits for however, comp payable. That, for which Title 34 awards are is not case here.
This “justice Court once said that polestar is the system” of our procedures and “our must ever applied be moulded and in Jersey Renner, that mind.” New Highway Auth. v.
485, 495, (1955). Division, A.2d 555 Like the the Court appears to be justice indifferent to whether is done or whether the procedures Instead, are fair. accepts the unfounded reasoning of the Division that pay the Division cannot unless petition “there is again[st].” [a] for us to file a lien Sperling
When entered into the $1500 34:15-20, gave up he forever his in reopen years his case for two if his condition worsened. It is unfair to Sperling assume that intended to waive between $6000 $8000 temporary disability favor of the settlement. $1500 Sperling explained that his proceedings counsel was misin formed about the status of Sperling his case. stated that his attorney impression “was under the already had [he] received [temporary] disability payments for the time that was out of [he] by Judge dissent, work.” As noted Shebell in his the $1500 “represents only a nuisance settlement for a non-work-related accident receiving only with the claimant after counsel fees.” $1000 (1997). 301 N.J.Super. Judge correctly Shebell spirit characterizes the stating, letter of N.J.S.A. proves “[i]f the claimant his and entitlement to benefits period for a longer than the he received cover, he is then [temporary disability entitled to benefits] period additional [comp].” covered Ibid. argument, At oral counsel candidly for the Board of Review acknowledged procedures that the in each forum should be im- said, proved. be, She “There does need to whether from this source, Court or from an administrative such as on the form of the itself, [comp] order some kind of declaration” that a worker who makes only settlement of a claim not disqualified benefits under Title but also must reim- burse the though disability may benefits fund even be non-work-related. The require- Division’s counsel favored a *9 explanation effect.
ment that the worker receive clear said, Such, she is an “excellent idea” one should be procedural improvement At least that “endorsed the Court.” “trap for unsuspecting” eliminate a worker. J., STEIN, concurring in the result. PORITZ,
For Justice and Justices affirmance —Chief HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN —6.
Concurring part, dissenting part O’HERN —1. —Justice