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Workers’ Comp Lien Applies Even if PIP Benefits Are Not Recoverable Against Tortfeasor

On January 13, 2011, Paulette Dorflaufer was hit by a car while working as a part-time crossing guard for Livingston Township.  She filed a workers’ compensation claim and filed a negligence law suit against the tortfeasor.  She settled that case for $95,000 for pain and suffering.  PMA Management Corporation put plaintiff on notice of its workers’ compensation lien in the amount of $46,856.22 for medical expenses paid on her workers’ compensation claim.

Plaintiff refused to reimburse PMA for the statutory lien amount.  She argued that she should only have to reimburse the amount paid for temporary disability benefits.  Her position on the medical benefits was that they were not payable from her third-party tort action and therefore should not be reimbursed to PMA.

Both parties sought a declaratory judgment in the Law Division. On November 17, 2014, the Superior Court denied plaintiff’s motion and granted PMA its lien on the medical expenses.  The court based its opinion on N.J.S.A. 34:15-40, which states that any sum the plaintiff should recover from a third party settlement is subject to a lien.  The court reasoned, “There is nothing in the statute that says it matters what the settlement was specifically compensating the plaintiff for or whether the plaintiff recovered full damages from it.”

On appeal, plaintiff argued that reimbursing PMA for its lien violates the Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35.  She contended that “since personal injury protection medical payments are not recoverable from the tortfeasor, a workers’ compensation carrier should not be able to recover medical expenses that it paid arising from an employee’s automobile accident.”  The Appellate Division disagreed for the following reasons:

In circumstances where an employee is injured in a work-related automobile accident, the collateral source rule of N.J.S.A. 39:6A-6 places the primary burden of paying the employee’s medical expenses through workers’ compensation. Lefkin v. Venturini, 229 N.J. Super. 1, 9 (App. Div. 1988).  Even where workers’ compensation benefits were not applied for by the employee, but would have been available, the statute provides that the PIP carrier may apply to the provider of workers’ compensation benefits for reimbursement of any benefits that the workers’ compensation carrier would have otherwise paid.

We are convinced that, based upon the plain language of Section 40, there is no bar to a workers’ compensation lien for reimbursement of medical expenses from an employee’s settlement in a third-party automobile negligence action.  There is nothing in Section 40 that prevents a lien from applying where the settlement represents payment for pain and suffering.  The fact that PIP benefits are not recoverable against a tortfeasor has no bearing on an employer’s Section 40 lien rights. 

This case may be found at Dorflaufer v. PMA Management Corp., A-1727-14T3 (App. Div. August 9, 2016).  This decision came one week after an appellate decision in Donatello v. Qual-Lynx, A-3643-14T4 (App. Div. August 2, 2016).  That case involved virtually the same facts and arguments, with a different appellate panel ruling once again that medical expenses were properly included in a workers’ compensation lien.  The injured worker also recovered in a third party action arising from a car accident and made the very same unsuccessful arguments that medical expenses and income continuation benefits in the third party action should be excluded from the workers’ compensation lien.  The Appellate Division agreed for the same reasons stated in Dorflaufer.

These two cases along with the recently published decision in Talmadge v. Burn, No. A-3160-14 (App. Div. June 22, 2016) make clear that Dever v. New Jersey Manufacturers. Ins. Co., No. A-3102-11T2 (App. Div. October 23, 2013) is bad law.  Section 40 is a powerful statute which has a dominant policy of avoiding double recoveries.

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About the Author

About the Author:

John H. Geaney, Esq. is a Shareholder and Co-Chair of Capehart Scatchard's Workers' Compensation Group. Mr. Geaney began an email newsletter entitled “Currents in Workers’ Compensation, ADA and FMLA” in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The Manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA Manual also distributed by NJICLE. If you are interested in purchasing “Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers,” please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association. He is one of two firm representatives to the National Workers’ Compensation Defense Network.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School.

Mr. Geaney was selected to the “New Jersey Super Lawyer” list (2005-2017, 2021 in the area of Workers’ Compensation). Only 5% of attorneys are selected to “Super Lawyers” through a peer nominated process based on independent research and peer evaluation. The Super Lawyers list is issued by Thomson Reuters. For a description of the “Super Lawyers” selection methodology, please visit https://www.superlawyers.com/about/selection_process.html

For the years 2022-2024 Mr. Geaney was selected for inclusion in The Best Lawyers in America® list in the practice area of Workers’ Compensation Law - Employers. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America® methodology can be viewed via their website at https://www.bestlawyers.com/methodology.

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Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Hamilton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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