Opinion
DOCKET NO. A-5287-13T1
02-23-2016
JOSE CABRERA, Petitioner-Appellant, v. COUSINS SUPERMARKET, Respondent-Respondent.
David S. Rochman argued the cause for appellant. Mark B. Spivak argued the cause for respondent (Chartwell Law Offices, LLP, attorneys; Mr. Spivak, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-6184. David S. Rochman argued the cause for appellant. Mark B. Spivak argued the cause for respondent (Chartwell Law Offices, LLP, attorneys; Mr. Spivak, on the brief). PER CURIAM
Petitioner Jose Cabrera appeals from an order permitting respondent Cousins Supermarket (Cousins) to assert a lien under N.J.S.A. 34:15-40. As we find that Cousins had that right under the statute, we affirm the ruling of the workers' compensation judge.
The following facts are pertinent to our review. In March 2008, Cabrera filed a workers' compensation claim alleging injuries he sustained to his right hand while operating a meat perforating machine. A settlement order in 2010 was approved, awarding both temporary and permanent disability.
The specific figures were temporary disability of $4,472.72 and permanent disability of $4,851.00.
Cabrera also filed a civil complaint against his employer and the manufacturer of the machine that was submitted to binding arbitration. The arbitrator found no liability as to the third-party defendants. However, pursuant to a "high/low" agreement, Cabrera recovered $25,000, all of which went to litigation costs and attorney's fees.
In May 2012, Cabrera had a subpoena served on Amerihealth Casualty, his health insurance carrier, requesting the amount of bills paid on his behalf and inquiring if it was asserting a lien. There was no response to the subpoena. Three months later (several days prior to the arbitration), Cabrera contacted Cousins' counsel, asking him to call Amerihealth to obtain the lien number. There was no mention to Cousins of the impending arbitration.
The following day, Cabrera advised Cousins that since the lien figure had not been provided, it would not be acknowledged or paid. Specifically, Cabrera asserted that Cousins had waived its right to assert a lien after failing to provide the lien figures. Cousins responded that it was not waiving the lien.
The lien figures were provided to Cabrera the day after the arbitration took place.
Cousins filed a motion to enforce the lien pursuant to N.J.S.A. 34:15-40 before the workers' compensation judge. The judge ruled that Cousins was entitled to a Section 40 lien and had not waived the right because Cabrera was always aware of the existence of a lien. This appeal followed.
Our standard of review is well-settled. We are bound by the compensation judge's factual findings that are supported by substantial credible evidence in the record "considering the proofs as a whole," and giving "due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (citation and internal quotation marks omitted).
However, it is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). The same standard applies with respect to the legal rulings of a judge of compensation. Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009).
N.J.S.A. 34:15-40(b) allows a compensation lien to attach to an employee's recovery against any other tortfeasors:
If the sum recovered by the employee or his dependents from the third person or his insurance carrier is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents less employee's expenses of suit and attorney's fee as hereinafter defined.Section 40 is therefore regularly invoked "when an employee obtains a recovery from a third-party tortfeasor directly responsible for causing the injury for which the employee received workers' compensation benefits." Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590, 598 (1995). The legislative purpose of Section 40 is to prevent an individual from gaining double recovery from two different sources for the same injury; double-dipping is therefore prohibited. When a third-party is responsible "for the worker's injury, the compensation carrier serves as a temporary neutral conduit, providing immediate benefits to be later reimbursed. . . . [T]he third-party has paid and the injured party ends up with the same amounts they would have paid and received had there been no compensation lien." Primus v. Alfred Sanzari Enters., 372 N.J. Super. 392, 403 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005).
"[S]ection 40 provides that an employee will be 'guaranteed recovery for his common-law damages against contributing third-party tortfeasors or for his [workers'] compensation award, whichever is greater, but he may not duplicate these recoveries.'" Frazier, supra, 142 N.J. at 597 (quoting Schweizer v. Elox Div. of Colt Indus., 70 N.J. 280, 287 (1976)).
Cabrera did not recover any net monies from his third-party lawsuit. After it was determined to be meritless, he recovered some money as a result of his high-low agreement but it was subsumed by counsel fees and litigation costs. Therefore, he contends that the statutory lien does not attach to the recovery received from a third-party claim when the net proceeds are not in excess of the cost of litigation against the third party. We disagree.
Cabrera recovered a sum of money as a result of his third-party complaint. The unfortunate consequence that the entire sum recovered from the third-party action was consumed by fees and costs of the litigation is not relevant to the application of the statute.
As we noted in Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572, 576 (App. Div. 2008) the statute
clearly evinces the Legislature's intent to broadly expand the type of payments to which the lien will attach. No matter how a-typical or novel the nature of a settlement agreement, the lien will attach to a payment received by an injured employee that is derivative of the employee's demand, claim or suit against a third party tortfeasor.This interpretation furthers the legislative scheme. The Court has held that "[t]here is no full compensation rule in the statute. When a plaintiff recovers from a third party, a lien attaches regardless of whether the cumulative awards are sufficient to fully compensate for all injuries." Frazier, supra, 142 N.J. at 602.
[Ibid.]
In Frazier, it was determined that a statutory lien attaches under N.J.S.A. 34:15-40 to the proceeds of a legal malpractice action even though the recovery may not have fully compensated the injured worker. Frazier, supra, 142 N.J. at 601-02. --------
When Cabrera accepted the "low" in the high/low agreement, this represented a settlement triggering N.J.S.A. 34:15-40 because it was a payment received from a tortfeasor as compensation for Cabrera's injuries. Accordingly, the lien will attach. As we found in Laureano v. New Jersey Transit Bus Operations, Inc., 220 N.J. Super. 295, 299 (App. Div. 1987), certif. denied, 110 N.J. 176 (1988), "the workers' compensation carrier may attach a lien to 'any payment' the employee recovers from the tortfeasor, whether or not the recovery fully compensates the employee for the injuries." Frazier, supra, 142 N.J. at 603.
As to the waiver of the right to assert the lien, we do not find the argument has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Cabrera was cognizant of both the medical and disability figures upon settlement of the workers' compensation action. A subpoena was served on the medical provider explicitly demanding information as to the lien amount. The decision to pursue a third-party action with its attendant costs is a known risk, one that is part and parcel to litigation. We find the compensation judge was correct in his application of the law to this matter.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION