STEP FORWARD. PARENTHESIS TIM IS LEAVING PARENTHESIS. CHIEF JUSTICE
RABNER: MAY WE PLEASE HAVE APPEARANCES OF COUNSEL? APPELLANT: GOOD
AFTERNOON, YOUR HONORS. JOHN MALLON, CHASAN, LAMPARELLO, MALLON AND CAPPUZZO, ON BEHALF
OF THE DEFENDANT PETITIONER SANDRA SANCHEZ AND CHAD SMITH. APPELLANT2: GOOD
AFTERNOON, YOUR HONORS, BRIAN GAFF FEE, CHASAN LAMPARELLO, ON BEHALF OF SANDRA SANCHEZ
AND CHAD SMITH SMOO GOOD AFTERNOON, YOUR HONOR. SEAN HUBER FROM BROWN AND CONNERY.
APPELLANT2: RICHARD ALBUQUERQUE, WITH THE DARCY JOHNSON DAY FIRM, ON BEHALF
OF AMICUS. CHIEF JUSTICE RABNER: WELCOME, COUNSEL. MR. MALLON?
APPELLANT: THANK YOU, YOUR HONORS. IF IT MAY PLEASE THE COURT. IF I MAY, CAN I RESERVE
A MOMENT OR TWO AT THE END FOR REBUTTAL? THANK YOU. AS THE COURT IS WELL
AWARE, THIS MATTER ARISES OUT OF A WORKERS COMPENSATION CARRIER'S RIGHT TO SUBROGATE
WHERE THE INJURED EMPLOYEE WHO IS SUBJECT TO THE VERBAL THRESHOLD CANNOT ESTABLISH A PERMANENT
INJURY AND THEREFORE IS NOT PURSUING A CLAIM ON HIS OWN. FOR MORE THAN 20
YEARS THIS TYPE OF CLAIM WAS BARRED BY THE APPELLATE DIVISION CASE OF CONTINENTAL VERSUS
MK CLEL. WHEN THIS CASE MADE IT UP, THE APPELLATE DIVISION CAME TO AN OPPOSITE
CONCLUSION TO THE COURT AND TO THE CONTINENTAL COURT AND PERMITTED THE CLAIM. THEREFORE,
WE HAVE TWO CONFLICTING APPELLATE DIVISION DECISIONS ON A VERY SIMILAR ISSUE.
IN PERMITTING THIS CLAIM, THE APPELLATE DIVISION ALSO BARRED THE APPLICATION OF THE
VERBAL THRESHOLD. AS A RESULT OF THE APPELLATE DIVISION's DECISION, THE PENDULUM HAS
SWUNG FROM 20 YEARS OF NO CLAIMS BEING PERMITTED UNDER THIS TYPE OF SITUATION TO NOW A
SITUATION WHERE THIS CURRENT DECISION WOULD PERMIT SUCH A CLAIM. WE CONTEND THAT THAT
WAS AN ERROR. AND EVEN MORE GREATER ERROR, WE CONTEND THAT THE BARRING OF THE VERBAL
THRESHOLD AS A DEFENSE FOR THE DEFENDANTS IN THIS CASE WAS ALSO AN ERROR. THE
STATUTE -- THE WORKERS COMPENSATION STATUTE SETS FORTH THAT THE WORKERS COMPENSATION CARRIER
IN PRESENTING A SUBROGATION CLAIM HAS NO GREATER RIGHTS THAN THE EMPLOYEE WOULD HAVE HAD
IF THEY BROUGHT THEIR OWN CLAIM. OBVIOUSLY THERE'S MUCH INTERPLAY IN THIS CASE BETWEEN
THE WORKERS COMPENSATION STATUTE AND THE AICRA STATUTE. THE AICRA STATUTE ONLY PERMITS
A CLAIM FOR UN-COMPENSATED LOSS UNDER SECTION TWO K OF THAT STATUTE. CONTINENTAL DECISION,
ALTHOUGH DECIDED UNDER AICRA, RELYING UPON VERY SIMILAR LANGUAGE IN AICRA'S PREDECESSOR,
CAME TO THE CONCLUSION THAT A WORKERS COMPENSATION CARRIER WAS PROHIBITED FROM
PURSUING A SUBROGATION CLAIM UNDER THESE CIRCUMSTANCES. JUDGE POLIFRONI, RELYING UPON
THE CONTINENTAL DECISION AND THE LANGUAGE OF AICRA CAME TO A SIMILAR CONCLUSION IN
PROHIBITING THIS PLAINTIFF'S ACTION IN THIS CASE. BOTH THE CONTINENTAL DECISION AND JUDGE
POLIFRONI BASED THEIR CONCLUSION ON THE FACT THAT THE INJURED WORKER HAD SUFFERED NO
UN-COMPENSATED LOSS. JUSTICE FERNANDEZ-VINA: CONTINENTAL ONLY APPLIED TO
PAIN PANNED SUFFERING BECAUSE A VERBAL THRESHOLD DOES NOT APPLY TO PIP F THE SUBROGATION
SOUGHT IS PRIMARILY LOSS WAGES, MEDICAL BILLS, IN OTHER WORDS ECONOMIC LOSS, DOES CONTINENTAL
APPLY TO THAT? APPELLANT: CONTINENTAL DOES APPLY TO THAT AND IT'S NOT
JUST -- JUSTICE FERNANDEZ-VINA: HOW DOES A VERBAL THRESHOLD PREVENT A CLAIM
FOR PIP AND LOSS WAGES. APPELLANT: THE IMPACT OF THE VERBAL THRESHOLD IN
THIS EQUATION IS THE VERBAL THRESHOLD IS WHAT BARS THE INJURED WORKER FROM PURSUING THEIR
OWN CLAIM FOR PAIN AND SUFFERING. JUSTICE FERNANDEZ-VINA: SO IF THERE ARE
ECONOMIC LOSSES HERE, HOW WOULD THE VERBAL THRESHOLD PREVENT A CLAIM. THE PIP STATUTE
WOULD PREVENT IT. THE COLLATERAL SOURCE RULE. BUT THE VERBAL THRESHOLD WOULD NOT AS
OPPOSED TO MEDICAL BILLS AND LOST WAGES. APPELLANT: I THINK TO ANSWER THAT,
WE NEED TO LOOK AT THE ENTIRE AICRA STATUTE TO REACH THAT CONCLUSION. AND WHEN LOOKING
AT THE ENTIRE AICRA STATUTE, WE DO LOOK AT THE SECTION TWO K WHICH BARS A CLAIM FOR
UN-COMPENSATED EXPENSES, WHICH IN THIS CASE ALL OF THE EXPENSES WERE COMPENSATED SO HE
HAS NO UN-COMPENSATED LOSS THERE. JUSTICE FERNANDEZ-VINA: I INTERRUPTED
YOU. I KNOW YOU RESERVED TIME. SO GO BACK TO YOUR -- APPELLANT: THANK YOU,
YOUR HONOR. TURNING TO THE ISSUE OF THE VERBAL THRESHOLD, THE APPELLATE DIVISION
DIRECTED THAT THE TRIAL COURT ENTER PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT.
AND THAT APPLICATION WAS TO RE-MOVE THE THRESHOLD AS A BAR TO THE CLAIM SUBMITTED HERE.
NOW, THE ISSUE THAT THAT RAISES IN PARTICULAR IS THAT BY BARGE THE VERBAL THRESHOLD DEFENSE,
THAT WOULD PERMIT THE PLAINTIFF TO PURSUE A CLAIM FOR PARTIAL PERMANENT DISABILITY, WHICH WAS
A PORTION OF THE WORKER'S COMPENSATION PAYMENTS MADE HERE. IN A TOTAL OF APPROXIMATELY
$33,000 IN PAYMENTS THAT WERE MADE MEESHGS APPROXIMATELY $22,000 OF THAT WAS FOR PARTIAL
PERMANENT DISABILITY. NOW, WHY IS THAT IMPORTANT? THE PARTIAL PERMANENT
DISABILITY PORTION OF THE AWARD TRULY IS NON-ECONOMIC LOSS. THE PARTIAL PERMANENCY
DISABILITY IS BASED UPON INTERFERENCE WITH THE WORKER'S LIFE, OTHER ASPECTS OF HIS LIFE,
NOT JUST HIS ABILITY TO WORK. IT IS AKIN TO A PAIN AND SUFFERING AWARD IN A TORT CASE.
AND FOR EVIDENCE OF THAT, WE ONLY NEED TO LOOK AT THE ACTUAL FACTS OF THIS CASE. THERE
AREN'T MANY OF THEM AVAILABLE TO US. BUT WHAT WE DO KNOW IS THIS ACCIDENT HAPPENED ON
DECEMBER 2ND, 2014. BY JANUARY 16, 2015, A MERE SIX OR SEVEN WEEKS LATER, THE PLAINTIFF
WAS DECLARED TO BE -- I'M SORRY. MR. MERCOGLIANO WAS DECLARED TO BE AT MAXIMUM MEDICAL
IMPROVEMENT AND DECLARED TO GO BACK TO WORK. THE PORTION OF THE TOTAL COMPENSATION AWARD,
APPROXIMATELY $4,000, WAS PAID TO HIM FOR HIS LOST WAGES. THEN HE RECEIVED AN AWARD FOR
THIS PARTIAL PERMANENT DISABILITY OF APPROXIMATELY $22,000 THAT OBVIOUSLY CONS
PLATES ISSUES THAT HE MAY HAVE HAD IN HIS LIFE EXTENDING PAST THAT DATE OF JANUARY 16, 2015,
WHEN HE WAS RETURNED TO WORK. IF PLAINTIFF NEW JERSEY TRANSIT WISHES TO
PURSUE THAT, THE DEFENDANT SHOULD HAVE THE BENEFIT OF THE VERBAL THRESHOLD AS A DEFENSE,
BECAUSE IF THE PLAINTIFF AS SUBROGEE OF MERCOGLIANO WAS UNABLE TO PROVE PERMANENCY,
THEN THAT PORTION OF THE WORKERS COMPENSATION CLAIM THAT WAS PAID WOULD BE AN ISSUE AND
ARGUABLY NOT RECOVERABLE BY PLAINTIFF NFLT IN THIS CASE. WE SUBMIT THAT THAT WAS AN ERROR
IN THIS CASE. I THINK IT'S ALSO IMPORTANT TO LOOK AT AICRA, WHICH HAS
INTERPLAY IN THIS. AND THE LEGISLATIVE INTENT OF AICRA. THE GOAL OF AICRA IS TO REDUCE
CLAIMS AND THEREFORE REDUCE THE COST OF AUTOMOBILE INSURANCE. AICRA SETS FORTH A
LIMITATION ON THE RIGHT TO SUE FOR NON-SERIOUS INJURIES IN EXCHANGE FOR PROMPT PAYMENT
OF R MEDICAL EXPENSES. ALLOWING THIS CLAIM TO GO FORWARD IS GOING TO OPEN UP A NEW AVENUE
OF CLAIMS THAT AS I SMED THE BEGINNING HAVE BEEN BARRED FOR MORE THAN 20 YEARS. THAT'S
GOING TO -- I KNOW PLAINTIFF IS MAKING THE ARGUMENT THAT THEY'LL ACTUALLY BE LESS
LITIGATION, BUT THE POINT IS, THERE WILL BE MORE CLAIMS. AND PLAINTIFF HAS CONCEDED THAT
IN THEIR BRIEF. ALTHOUGH THEY THINK THAT THE CLAIMS MAY BE ALL RESOLVED QUICKER. I DON'T
KNOW THAT THERE'S A GUARANTY OF THAT. THERE MAY IN FACT BE MORE LITIGATION. BUT EVEN
IF WE ASSUME THERE WASN'T GOING TO BE MORE LITIGATION, THERE WOULD BE MORE CLAIMS AND
IT'S GOING TO WORK AGAINST THE GOALS OF AICRA WHICH IS TO REDUCE AUTOMOBILE INSURANCE
BY REDUCING THOSE CLAIMS. PLAINTIFF ALSO CONCEDES THAT THOSE RATES CAN BE
ADJUSTED IF THERE ARE IN FACT MORE CLAIMS. WE ALL KNOW THAT THOSE RATES ARE NOT GOING
TO BE ADJUSTED DOWNWARD. AUTOMOBILE INSURANCE RATES WOULD BE ADJUSTED UP IF THERE ARE
MORE CLAIMS BEING PAID BY THE AUTOMOBILE CARRIERS TO COMPENSATE THESE WORKERS COMPENSATION
SUBROGATION CLAIMS. THEREFORE, THE GOALS OF AICRA ARE NOT GOING TO BE MET
BY ALLOWING THE APPELLATE DIVISION's DECISION TO STAND IN THIS MATTER. P LET ME ASK YOU
SOMETHING ABOUT THE TRIAL COURT'S DECISION AND TELL ME IF HIM MISS WILL YOU UNDERSTANDING
THE COURT'S DECISION. THE JUDGE NOTES THAT THE STATUTE, SECTION 40 F, LIMITS THE WORKERS
COMPENSATION CARRIER, IN THIS CASE NJ T's SUBROGATION RIGHTS TO STATUTORY LANGUAGES.
SUCH RIGHT OF ACTION THAT THE INJURED EMPLOYEE WOULD HAVE HAD AGAINST THE DEFENDANT.
OBVIOUSLY THAT'S WHAT THE STATUTE SAYS. AND THEN GOES ON TO SAY THAT THERE WAS NO --
THAT THERE WAS NO ACTION FOR ECONOMIC LOSS BECAUSE IN ORDER TO HAVE SUBROGATION IT HAS
TO BE AN UN-COMPENSATED LOSS. AND THEN SAYS THIS WAS NOT AN UN-COMPENSATED LOSS BECAUSE
NEW JERSEY TRANSIT PAID THE PLAINTIFF. SO WHAT THE COURT IS ESSENTIALLY
SAYING IS, YOU CAN NEVER HAVE A SUBROGATION ACTION AGAINST -- A PARTY CAN NEVER BRING
A SUBROGATION ACTION FOR DAMAGES THAT THAT PARTY ITSELF PAID. AND THAT DOES NOT SEEM
EQUITABLE TO ME. APPELLANT: BUT I THINK IT'S UNDER THE LIMITED CIRCUMSTANCES
WHERE YOU HAVE AN INJURED WORKER WHO IS SUBJECT TO THE THRESHOLD. JUSTICE
PATTERSON: RIGHT. APPELLANT: ONCE YOU GET AWAY FROM AN AUTOMOBILE LOSS,
THEN -- JUSTICE PATTERSON: UNDERSTAND THAT. I UNDERSTAND IT'S LIMITED
TO AUTOMOBILE LOSSES JUST BY ITS NATURE AND BECAUSE OF THE AICRA ASPECT TO IT. BUT THE
FACT IS THAT THE STATUTE TALKS ABOUT UN-COMPENSATED LOSSES IN ORDER TO NOT HAVE A
DOUBLE WINDFALL FOR THE PLAINTIFF AND IN THIS CASE THE COMPENSATION TO THE PLAINTIFF WAS
FROM NEW JERSEY TRANSIT. AND I'M -- I'M SORRY. THE PLAINTIFF. I'M TALKING ABOUT MR.
MERCOGLIANO. MERCOGLIANO. AND THE COURT IS SAYING, WELL, TOO BAD, YOU, THE SUBROGEE
CANNOT SUE FOR THAT AMOUNT BECAUSE IT TURNS OUT THE DRIVER WAS COMPENSATED BUT IT'S THE
SUBROGEE WHO DID THE COMPENSATION. DO YOU SEE WHAT I MEAN? APPELLANT:
RIGHT. JUSTICE PATTERSON: THERE'S A LACK OF EQUITY IN THAT RESULT, IS THERE
NOT? LIKE YOU PAID HIM, TOUGH LUCK. HE TURNED OUT TO BE PAID SO YOU CAN'T SUBROGATE.
APPELLANT: AND I THINK THERE'S A FEW THINGS BEHIND THAT. ONE IS THAT AS
THE CONTINENTAL COURT POINTS OUT, EVEN THOUGH THE INJURED WORKER MAY NOT HAVE RECOVERED
PIP, THEY ARE STILL IN THE SYSTEM BY VIRTUE OF THEM HAVING PURCHASED AN AUTOMOBILE POLICY
THAT PROVIDES PIP. AND ALTHOUGH -- LET'S TAKE OUR CASE. MERCOGLIANO ONLY COLLECTED THE
WORKERS COMPENSATION, BUT THERE ARE INSTANCES WHERE -- JUSTICE PATTERSON:
THAT STILL IS HOLDING AGAINST THE PLAINTIFF IN THIS CASE THE FACT THAT THEY PREVIOUSLY
PAID THE COMP BENEFITS TO THE DRIVER AND SAYING YOU CAN'T SUBROGATE FOR THAT BECAUSE HE
GOT PAID EVEN THOUGH THEY'RE THE ONES WHO PAID HIM. APPELLANT: I THINK WE
ALSO HAVE TO LOOK AT AICRA, WHICH IS TRYING TO REDUCE SMALLER CLAIMS FROM BEING BROUGHT
AND THEREFORE REDUCE AUTOMOBILE INSURANCE PREMIUMS. THEN THERE PROBABLY IS A BALANCING
TEST TOO. JUSTICE FERNANDEZ-VINA: DOESN'T THAT FLY IN THE FACE OF THE CLASSIC
DEFINITION OF SUBROGATION? THE CARRIER PAYS AND SEEKS TO OBTAIN THE MEN THEY PAID FROM
SOMEONE ELSE. IN ORDER TO HAVE SUBROGATION, THE CARRIER HAS TO HAVE PAID SOMEONE. IN
THIS CASE THE VICTIM. IF YOU PAY AND YOU CAN'T SUBROGATE, THERE IS NO SUBROGATE. THAT'S
THE CLASSIC DEFINITION OF SUBROGATION. THE CARRIER PAYS AND SEEKS FROM ANOTHER PARTY.
APPELLANT: RIGHT. AND IT'S OUR CONTENTION, UNDER THESE LIMITED
CIRCUMSTANCES, THERE IS NO CLAIM FOR SUBROGATION UNDER THE FACTS OF THIS CASE AND SIMILAR
CASES TO THAT. AND IT GOES BACK TO THE -- IN DEFINING THE SUBROGATION CLAIM, THE SUB
GORE ALWAYS STANDS IN THE SHOES OF THE SUB GEEZ. APPELLANT: JUSTICE
ALBIN: ISN'T THE REASON THERE IS NO SUBROGATION HERE, THIS IS YOUR ARGUMENT, IS THE
LEGISLATURE MADE A POLICY CHOICE. OUT OF WHO'S POCKET IS THIS PAYMENT GOING TO BE MADE?
THE AUTOMOBILE INSURANCE ERS OR WORKER'S COMP. AND THE LEGISLATOR WAS CONCERNED ABOUT
TAMPING DOWN THE COST OF RISING INSURANCE PREMIUMS. THAT'S THE REASON WHY IT MADE THE
WORKER'S COMP PRIMARILY RESPONSIBLE FOR THESE PAYMENTS. ISN'T THAT YOUR ARGUMENT?
APPELLANT: RIGHT. AND THAT'S WHAT I WAS JUST GETTING TO WITH THE BALANCING TEST.
JUSTICE FERNANDEZ-VINA: ISN'T THERE A STATUTE WHERE IF A WORKERS COMPENSATION
CARRIER DENIES IT IT PROVIDES COVERAGE, THE PIP CARRIER IS CALLED UPON TO PAY THE PIP
BILLS IMMEDIATELY AND THEN ONCE COMPENSABLE, THE PIP CARRIER HAS A SUBROGATION RIGHT
AGAINST THAT WORKERS COMPENSATION CARRIER? APPELLANT: THAT IS TRUE.
JUSTICE FERNANDEZ-VINA: 9.1. ISN'T THAT WHAT WE ARE JUST TALKING ABOUT, THERE SEEMS TO BE
AN ATTEMPT BY THE LEGISLATURE TO TAMP DOWN THE PIP COSTS? APPELLANT: EXACTLY.
AND THE CASES TALK ABOUT THAT TOO. WHEN IT'S BETWEEN PIP AND WORKER'S COMP, WHEN PIP
HAS TO PAY, EVENTUALLY IT'S GOING TO SHIFT TO WORKER'S COMP. JUSTICE ALBIN:
SO THE INSURED HERE COULD HAVE SOUGHT PIP BENEFITS, RIGHT? AND THEY WOULD HAVE BEEN
IMMEDIATELY PAID. FOR THE ECONOMIC LOSS. CORRECT? APPELLANT: CORRECT.
JUSTICE ALBIN: THEN THE PIP CARRIER COULD HAVE SOUGHT REIMBURSEMENT FROM
THE WORKERS COMPENSATION CARRIER. APPELLANT: CORRECT? APPELLANT:
YES. RIGHT. JUSTICE ALBIN: NOW THE QUESTION IS, COULD THE WORKERS COMPENSATION
CARRIER UNDER THAT CIRCUMSTANCE GO AFTER THE CARRIER OF THE TORTFEASOR? AND YOUR ANSWER
IS -- APPELLANT: IS NO. JUSTICE ALBIN: RIGHT. SO THE QUESTION
-- AND WE KNOW THAT THE PIP CARRIER WOULD NOT BE ABLE TO GO AFTER THE TORTFEASOR. THAT'S
CLEAR. APPELLANT: CORRECT. JUSTICE ALBIN: SO THE QUESTION
IS, BY HAPPENSTANCE OF THE INSURED NOT GOING ORIGINALLY TO THE PIP CARRY, IS A WORKER'S
COMP CARRIER NOW GOING TO BE ABLE TO GO AFTER THE TORTFEASOR? APPELLANT:
AND MY RESPONSE TO THAT IS UNDER THESE CIRCUMSTANCES THEY SHOULD NOT BE BECAUSE FRT
GOALS OF AICRA AND TRYING TO REDUCE THOSE AUTOMOBILE PREMIUMS AND GOING TO THAT
BALANCING TEST. IT IS -- IT SEEMS TO BE THE GOAL HERE TO HAVE THESE COSTS BORNE BY THE
BUSINESSES THAT FUND THE WORKERS COMPENSATION PREMIUMS VERSUS THE DRIVING PUBLIC THAT'S
PAYING THE AUTOMOBILE PREMIUMS BASED UPON THE GOALS OF AICRA? JUSTICE ALBIN:
DON'T YOU ALSO HAVE 396A 12. EVIDENCE OF THE AMOUNTS COLLECTIBLE OR PAID UNDER PIP CANNOT
BE ADMITTED INTO EVIDENCE. SO COLLECTIBLE. EVEN THOUGH THE INSURED WENT TO WORKER'S
COMP, THEY THEORETICALLY WERE COLLECTIBLE UNDER PIP. RIGHT? APPELLANT:
I WOULD AGREE. AND THERE ARE -- ALTHOUGH NOT IN THIS CASE, THERE ARE INSTANCES WHERE
CERTAIN THINGS MAY NOT BE COVERED BY WORKER'S COMP AND PIP MAY STILL HAVE A ROLE IN A
PARTICULAR CASE. JUSTICE PATTERSON: BUT THERE WAS NO EFFORT ON THE PART
OF -- TELL ME IF I'M CORRECT ABOUT THIS. ON THE PART OF NEW JERSEY TRANSIT TO ADMIT IN
THE SUMMARY JUDGMENT PROCEEDING EVIDENCE OF WHAT PIP COULD HAVE PAID. APPELLANT:
THERE WAS NO -- JUSTICE PATTERSON: SO THAT STATUTE REALLY IS NOT RELEVANT
TO THIS PROCEEDING. APPELLANT: IN THIS PARTICULAR CASE, THAT WAS NOT PART
OF THE SUMMARY JUDGMENT -- THE EVIDENCE -- JUSTICE PATTERSON: WOULD YOU
AGREE, NOW, YOU'RE MAKING SOME POLICY ARGUMENTS, BUT WOULD YOU AGREE THAT THE EXACT SCENARIO
THAT WE HAVE IN THIS CASE WHEN THERE IS NOT A SITUATION WHERE THE COMP CARRIER IS GOING
AFTER A PIP CARRIER, BECAUSE A PIP CARRIER IS NOT IN THE MIX, THIS EXACT SCENARIO IS NOT
SPELLED OUT IN THE STATUTES? APPELLANT: NOT SPELLED OUT -- I WOULD AGREE
IT'S NOT SPELLED OUT. BUT BY COMPARING THE STATUTES AND THE CASE LAW, I THINK WE CAN
COME TO A CONCLUSION THAT THIS IS THE CORRECT RESULT. JUSTICE PATTERSON:
RIGHT. BUT IF THIS WERE A SITUATION WHERE THERE WAS A COMP CARRIER VERSUS A PIP CARRIER,
THERE WOULD BE NO QUESTION. THE LEGISLATURE HAS MADE A CLEAR DETERMINATION OF WHAT THAT IS.
APPELLANT: RIGHT. AND THERE'S NOTHING AS CLEAR -- JUSTICE
PATTERSON: AS CLEAR AS THAT. SO YOU'RE ASKING US TO BASICALLY LOOK AT LEGISLATIVE INTENT
IN THE STATUTES. APPELLANT: RIGHT. JUSTICE SOLOMON: DID I
HEAR YOU SAY THAT BECAUSE MR. MERCOGLIANO HAD THE VERBAL THRESHOLD THAT THESE BENEFITS
FOR MEDICAL EXPENSES AND LOST WAGES CANNOT BE RECOVERED IN A SUBROGATION CLAIM?
APPELLANT: IN A SUBROGATION CLAIM. DIFFERENT FROM IF MR. MERCOGLIANO COULD BREACH THE
THRESHOLD AND WAS BRINGING HIS OWN CLAIM, THEN LAMBERT APPLIES AND WE HAVE AN ENTIRELY
DIFFERENT SITUATION. JUSTICE SOLOMON: SO IN THAT CASE, HE BREACHES THE
THRESHOLD. THAT INSURANCE COMPANY CAN NOW SUBROGATE FOR NON-ECONOMIC LOSS AND ECONOMIC
LOSS? APPELLANT: WELL, IF HE BREACHES THE THRESHOLD, PRESUMABLY THEN HE'S
BRINGING A CLAIM AND HAS PUT FORTH SOME PROOFS TO SHOW THAT HE BREACHED THE THRESHOLD.
AND IN THAT INSTANCE THEN THE INJURED WORKER IS BRINGING HIS OWN CLAIM AND UNDER THE STATUTE
ONLY THE INJURED WORKER CAN THEN PURSUE THE REIMBURSEMENT OF THE WORKERS COMPENSATION
PAYMENT. AND THEN THEY WOULD HAVE A LIEN ON THE RECOVERY -- JUSTICE SOLOMON:
DOES THAT LIEN INCLUDE ECONOMIC LOSS? APPELLANT: YES. THE MEDICAL AND
THE WAGES. JUSTICE SOLOMON: DOES THAT MEAN THAT WHEN -- LET'S SAY IT GOES
TO TRIAL. BREACH THE VERBAL THRESHOLD. GOT LOTS OF MEDICAL EXPENSES. THE COMP CARRIER
HAS PAID ALL OF IT. AND DOES THAT NOW BECAUSE IT'S RECOVERABLE AND IT CAN BE ASSERTED
AGAINST THE RECOVERY GO ON THE BLACKBOARD SO THE JURY CAN CONSIDER IT?
APPELLANT: THAT'S MY UNDERSTANDING. IS THAT THOSE ARE -- THAT -- THE MEDICAL -- THE COMP
LIEN ITSELF DOESN'T GO ON IT. YOU DON'T COME IN AND SAY WE HAVE A COMP LIEN --
JUSTICE SOLOMON: ECONOMIC LOSS NOW GOES ON THE BLACKBOARD. APPELLANT: CORRECT.
JUSTICE SOLOMON: IN THAT CASE, EVEN THOUGH IT'S AN AUTO ACCIDENT AND EVEN
THOUGH ESSENTIALLY THE REQUIREMENTS OF PIP AND THE REIMBURSEMENT FOR MEDICAL EXPENSES
AND LOST WAGES HAS BEEN PAID ALBEIT BY ANOTHER CARRIER. APPELLANT: RIGHT.
THE MEDICAL AND THE LOST WAGES. NOT THE -- NOT PERMANENCY AWARDS BUT THOSE AS YOU REFERRED
TO AS ECONOMIC, MEDICAL AND LOST WAGES, YES, EVIDENCE CAN BE SUBMITTED TO THEM. THEY CAN
K ON THE BOARD AT THE POINT. AND THE MAJOR DIFFERENCE THERE IS THAT YOU HAVE WHAT THE
CASES REFER TO AS THE COULDN'T JOINED RECOVERY. AND WHEN YOU LOOK AT LEFKIN AND LAMBERT
AND EVEN THE STATUTE ITSELF, THEY ALL TALK ABOUT IF THERE HAS BEEN RECOVERY. THAT'S THE
LANGUAGE THAT'S USED THROUGHOUT THOSE OPINIONS AND IN THE STATUTE IS, IF THERE HAS BEEN
A RECOVERY BY THE INJURED WORKER, THEN THE COMP CARRIER HAS A LIEN AGAINST THAT RECOVERY
AND, YOU KNOW, THAT WAS ISSUES DEALT WITH IN LAMBERT THAT WE'RE NOT CHALLENGING THAT
DECISION IN THIS HERE. WE'RE REALLY FOCUSED ON THIS LIMITED AREA WHERE TYPICALLY MINOR
CLAIMS, SOMEONE HAD A MINOR WORK INJURY, THEY'RE NOT PURSUING A CLAIM FOR PERMANENCY,
PRESUMABLY BECAUSE THEY DON'T HAVE A PERMANENT INJURY, THEY HAD SOME TREATMENT. THEY
MAY HAVE MISSED SOME WORK. THERE WAS SOME PAYMENTS MADE. AND IT IS OUR POSITION THAT
URNTD THE CONTINENTAL DECISION AND LOOKING -- COMPARING THE GOALS OF AICRA AND THEN
WORKER'S COMP THAT THAT CLAIM IS BARRED. CHIEF JUSTICE RABNER: WHAT IS THE
LOGIC OF LAMBERT APPLY IF AT ALL IN YOUR VIEW? APPELLANT: IN THIS CASE
OR IN -- CHIEF JUSTICE RABNER: IN THIS CASE. APPELLANT: I THINK
THE -- WHERE LAMBERT IS INSTRUCTIVE IS WHEN IT REFERS TO THAT RECOVERY THAT'S BEEN MADE.
BECAUSE IN LAMBERT AND THE OTHER CASES THAT WERE CONSIDERED BY THE APPELLATE DIVISION
IN THAT CASE, THERE HAD BEEN WORKERS COMPENSATION PAYMENTS MADE BUT THERE ALSO HAD BEEN
SUBSTANTIAL RECOVERS IN EACH OF THOSE MATTERS. AND AS JUDGE POLIFRONI CONCLUDED IN HIS
OPINION, PRESUMABLY SHOWING THAT THAT PERSON HAD -- EITHER DIDN'T HAVE A THRESHOLD OR
HAD VAULTED THE THRESHOLD IN ORDER TO BE ABLE TO GET TO THE POINT WHERE THEY HAD RECOVERED
THAT AMOUNT OF MONEY. AND I BELIEVE IT WAS ALL BY SETTLEMENT. I DON'T RECALL THOSE BEING
TRIAL VERDICTS. I THINK THOSE WERE SETTLEMENTS. AND THEN THE ISSUE IN THE LAMBERT DECISIONS
WAS WHETHER OR NOT THE PLAINTIFFS HAD TO RE-PAY THE MEDICAL PORTION OF THEIR WORKERS
COMPENSATION LIEN BACK. AND THE COURT CONCLUDED THAT THEY DID THERE. SO THAT IS
A DIFFERENT SCENARIO THERE BECAUSE YOU HAVE AN INJURED WORKER WHO HAS PRESUMABLY HAD MUCH
GREATER INJURY AND HAS BEEN ABLE TO VAULT THE THRESHOLD. JUSTICE SOLOMON:
ISN'T THAT A PROBLEM, BECAUSE IN THAT CASE, IF YOU ARE COLLECTING FOR YOUR PAIN AND
SUFFERING BY WAY OF SETTLEMENT AND THE COMP CARRIER IS NOW SUBROGATING -- HAS A LIEN AND
TAKES LOST WAGES -- ECONOMIC LOSS AND NON-ECONOMIC LOSS. INSTEAD OF GETTING A
DOUBLE RECOVERY FOR THE PLAINTIFF, ESSENTIALLY THEY'VE GOTTEN HALF A RECOVERY. BECAUSE
THEY'RE PAYING BACK THE STUFF THAT PIP WOULD NOT HAVE BEEN ENTITLED TO GET. AND THEY'RE
PULLING IT OUT OF WHAT THEY SETTLED FOR IN PAIN AND SUFFERING. APPELLANT:
I WOULD DISAGREE THAT THERE HAS BEEN HALF A RECOVER. AND THE REASON WHY IS, THE
PLAINTIFF HAS CERTAIN ECONOMIC DAMAGES THAT THEY WOULD SUBMIT AS PART OF THAT AND THAT
WOULD INCLUDE THE MEDICAL AND THE LOST WAGES. JUSTICE SOLOMON: AS PART
OF THE SETTLEMENT? APPELLANT: AS PART OF THEIR CLAIMS FOR DAMAGES. WHAT
THEY NEGOTIATE IS A SETTLEMENT. OBVIOUSLY IT'S DIFFERENT IN EVERY CASE. BUT THOSE ARE
THE CLAIM FOR DAMAGES. AND THE SENSE THAT THERE'S A PARTIAL PERMANENCY DISABILITY AWARD
LIKE WE HAVE HERE AND THAT HAS TO BE PAID BACK, AND THAT PLAINTIFF HAS ALREADY RECEIVED
SOME COMPENSATION FOR THAT, THAT INTERFERENCE WITH HIS LIFE. SO THERE'S NO DOUBLE RECOVERY
BUT THERE'S NO HALF RECOVERY EITHER. JUSTICE SOLOMON: BUT I THOUGHT IN LAMBERT
THEY SPECIFICALLY DISCUSSED -- I THOUGHT. I MAY BE MIXING UP CASES OR I MAY JUST MISREMEMBER.
I THOUGHT THEY DISCUSSED THE FACT THAT THE RECOVERY AND THE SETTLEMENT WAS FOR PAIN AND
SUFFERING, NOT FOR ECONOMIC LOSS. APPELLANT: MY UNDERSTANDING WAS WHATEVER
THOSE RECOVERY AMOUNTS WERE BY THE THREE PLAINTIFFS IN LAMBERT IS ILT ENCOMPASSED ALL
THEIR DAMAGES. THEIR PAIN AND SUFFERING AND THEIR CLAIMS FOR ECONOMIC DAMAGES AND THAT'S
TYPICAL IN THE WAY IT WOULD BE PRESENTED IN A CASE WHERE THERE IS A COMPENSATION LIEN
BY AN INJURED WORKER WHO IS NOW BRINGING HIS OWN BODILY INJURY LAWSUIT. ALSO THEIR MEDICAL
EXPENSES AND THEIR LOST WAGES AND TYPICALLY WHEN PRESENTED THE COMP CARRIERS DON'T ALWAYS
PAY DOLLAR FOR DOLLAR ON THE WAGES, SO AS PRESENTED TO A JURY OR IN THE CLAIM, THE
NUMBER FOR LOST WAGES IS OFTENTIMES LARGER THAN THE PAYMENT THAT WOULD HAVE TO BE SENT
BACK TO THE COMP CARRIER IN THOSE. IF YOU'RE MAKING 800 A WEEK, THEY PAY YOU 500 A WEEK,
BUT THEIR CLAIM IS GOING TO BE FOR 800 A WEEK AS PRESENTED IN THE CLAIM. WHETHER.
JUSTICE PATTERSON: TO WHAT EXTENT SHOULD WE CONSIDER THE POLICY THAT THE LEGISLATURE
EXPRESSED IN FAVOR OF SUBROGATION FOR THE REASONS OF ESSENTIALLY HAVING COMP CARRIERS
GET SOME OF THE MONEY BACK? APPELLANT: RIGHT. AND OBVIOUSLY THAT IS IN
THE COMP STATUTE. THE ALLOWANCE OF SUBROGATION. BUT THEN WE HAVE AICRA WHO, YOU KNOW,
IN 1998 LIMITING THAT AND THAT IS TWO YEARS AFTER THE CONTINENTAL DECISION CAME OUT.
SO CONTINENTAL HAD CLEARLY LIMITED THAT TYPE OF CLAIM. THE LEGISLATURE THEN CONVENIENCE
AND PASSES THE AICRA STATUTE. PRESUMABLY KNOWING ABOUT THE CONTINENTAL DECISION. AND
DOESN'T DO ANYTHING TO SAY WELL THAT WAS WRONG, THAT'S NOT WHAT WE MEANT. SO THE ARGUMENT
IS THAT FOR ALL THE REASONS THAT I'VE SAID EARLIER THAT THE CLAIM SHOULD BE BARRED, THAT
IT SHOULD BE BARRED, THAT IN THAT INSTANCE AICRA WOULD TRUMP THE COMP STATUTE.
JUSTICE PATTERSON: WHEN THE VERBAL THRESHOLD IS NOT MET AND PIP DOES NOT COME INTO PLAY,
DO WE HAVE ANY EXPRESSION OF PRIORITIES BY THE LEGISLATURE AS TO WHICH POLICY SHOULD PREVAIL
OVER THE OTHER? POLICY IN FAVOR OF SUBROGATION VERSUS THE POLICIES EXPRESSED IN AICRA.
IN A CASE LIKE THIS WHERE THERE'S NO PIP RECOVERY. APPELLANT: RIGHT. IF
WE'RE LOOKING FOR EXPRESSED LANGUAGE, I WOULD SAY WE DO NOT HAVE EXPRESS LANGUAGE. BUT
WE HAVE THE GOALS THAT WERE SET FORTH BY THE LEGISLATURE IN AICRA IN REDUCING THE PREMIUMS
COUPLED WITH THE CASE LAW THAT HAS INTERPRETED CONTINENTAL INTERPRETING ACHE RA'S
PREDECESSOR AND AICRA CERTAINLY DIDN'T LESSEN UP ON THE GOALS OF -- IT STRENGTHENED THE
GOALS OF COST SAVINGS. BUT THEN ALSO THE DECISIONS THAT CAME AFTER AICRA WAS PASSED,
I THINK IT'S PATERSON AND THEN THERE WAS THE UN-REPORTED APPELLATE DIVISION DECISION.
JUSTICE ALBIN: THE STATUTE IS CLEAR, THE PIP CARRIER CAN SEEK RECOVERY FROM
WORKER'S COMP. WORKER'S COMP CANNOT SEEK RECOVERY FROM PIP. AND WE ALSO KNOW THAT
1540 SAYS THAT THE RIGHT OF ACTION, SUBROGATION, SHALL BE ONLY FOR SUCH RIGHT OF ACTION
THAT THE INJURED EMPLOYEE OR HIS DEPENDENTS WOULD HAVE HAD AGAINST A THIRD PERSON. AND
HAD PIP PAID OUT DIRECTLY TO THE INSURED, THE INSURED WOULD NOT HAVE BEEN ABLE TO SUE
THE TORTFEASOR. SO THE QUESTION IS WHETHER OR NOT THIS SUB CUE TUS SUBROGATION
RIGHT THAT'S GOING TO BE RECOGNIZED BY THIS COURT. APPELLANT: RIGHT. AND
JUDGE POLIFRONI ADDRESSED THAT. IN THAT VERY INSTANCE, IN THE EXAMPLE YOU JUST GAVE,
JUSTICE, WHERE YOU WOULD HAVE A SITUATION WHERE THE PIP MAY PAY, THEY GO TO COMP AND THEN
COMP TURNS AROUND AND GOES TO AUTO TO TRY TO GET THEIR MONEY BACK IN NOT ACCEPTING THAT
AS THE CORRECT ANSWER -- JUSTICE PATTERSON: RIGHT. BUT THAT'S NOT GOING
TO HAPPEN IN THIS SCENARIO, BECAUSE PIP DIDN'T PAY. WAS NOT GOING TO PAY.
APPELLANT: IN THIS PARTICULAR CASE. JUSTICE PATTERSON: YES. CHIEF
JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD? APPELLANT: THE ONLY OTHER THING
FOR NOW IS THAT THE ARGUMENT HAS BEEN MADE THAT -- BY NEW JERSEY TRANSIT THAT LAMBERT
OVERTURNED CONTINENTAL AND I'D JUST LIKE TO POINT OUT THAT LAMBERT DID NOT EVEN DISCUSS
CONTINENTAL IN THAT DECISION AND I THINK JUDGE POLIFRONI ADDRESSED THAT VERY WELL IN HIS
DECISION THAT HE PREPARED IN THIS. THAT THE TWO CAN CO-EXIST. LAMBERT AS I HAD MENTIONED
EARLIER DEALS WITH THOSE INSTANCES WHERE THE PLAINTIFF OR THE INJURED WORKER, SORRY, I'M
CONFUSING PLAINTIFF AND INJURED WORKER, WHERE THE INJURED WORKER CAN OVERCOME THE THRESHOLD
AND HAS COLLECTED AND WHERE CONTINENTAL IS DEALING WITH THESE WORKER COMPENSATION
SUBROGATION ACTIONS. SO AS I SAID, LAMBERT DOESN'T EVEN ADDRESS CONTINENTAL. IT DOESN'T
EXPLICITLY OVERTURN IT. I DON'T THINK IT EVEN OVERTURNS IT IN PRACTICE. THE TWO CAN
CO-EXIST. THEY'RE NOT IN-CONSISTENT WITH EACH OTHER. CHIEF JUSTICE RABNER:
MR. HUBER. RESPONDENT: MAY IT PLEASE THE COURT, COUNSEL. THE TIME HAS COME
FOR THIS COURT TO FINISH WHAT THE APPELLATE DIVISION STARTED IN 1988 WITH LEFKIN. THE
APPELLATE DIVISION AGAIN SAID TWICE IN 2016 WITH TALMADGE AND WITH LAMBERT AND THEN MOST
RECENTLY WHAT THE APPELLATE DIVISION DID HERE IN 2018 WITH OUR CASE. AND THAT IS TO FINALLY
STATE THAT THE WORKERS COMPENSATION ACT TRUMPS AICRA WHEN IT COMES TO HOLDING TORTFEASORS
RESPONSIBLE FOR REIMBURSING EMPLOYERS AND COMP CARRIERS FOR THE BENEFITS THAT A WORKERS
COMPENSATION CARRIER OR EMPLOYER PAYS TO AN INJURED EMPLOYEE E AND IT DOESN'T MATTER
WHETHER THAT CLAIM IS BROUGHT BY THE INDIVIDUAL EMPLOYEE IN THE FORM OF A LIEN LIKE WE HAD
IN LEFKIN, TALMADGE AND LAMBERT OR WHETHER LIKE THIS CASE WHEN THE EMPLOYER OR A WORKERS
COMPENSATION CARRIER BRINGS THE CLAIM BY WAY OF SUBROGATION. AND WHY IS THAT?
WELL, BECAUSE THE LEGISLATURE WANTS EMPLOYERS AND WORKERS COMPENSATION CARRIERS TO BE
REIMBURSED BY TORTFEASORS. THE PEOPLE WHO CAUSED THESE EXPENDITURES FOR HAVING TO HAVE
BEEN MADE. AND BECAUSE THAT'S THE IDEA, WE SHOULD ENFORCE IT -- YOUR HONORS SHOULD
ENFORCE IT HERE AS WELL. NOW, WHEN I THINK OF THE WORKERS COMPENSATION LIEN
IN PARTICULAR, IT'S WHAT I CALL A SUPER LIEN. NO MATTER HOW THAT LIEN HAS BEEN ATTACKED
BY EMPLOYEES WHO HAVE BROUGHT THEIR OWN CLAIMS, LET'S SAY, THAT LIEN HAS ALWAYS BEEN ENFORCE
D. THERE'S ONLY ONE EXCEPTION TO THAT AND THAT COMES UP IN THE PER QUOD CONTEXT. BUT
EVERY OTHER TIME WHETHER THE INJURED EMPLOYEE IS FULLY COMPENSATED OR NOT, IT DIDN'T MATTER.
THAT LIEN HAS GOT TO BE RE-PAID. REMEMBER, BOO I THE TORTFEASOR. AND SINCE
THESE BENEFITS ARE IN THE FORM OF MEDICAL BILLS AND LOST WAGES, THEY ARE ECONOMIC LOSSES.
THEY ARE NOT NON-ECONOMIC LOSSES. THEREFORE, AS THE APPELLATE DIVISION BELOW SAID, THE
VERBAL THRESHOLD DEFENSE IS NOT A BAR TO THESE CLAIMS. THE VERBAL THRESHOLD DEFENSE
APPLIES. WHY? WELL, IF I WERE TO TRY THIS MATTER AND THE EMPLOYEE TOOK THE STAND AND
TESTIFIED ABOUT ALL THESE PROBLEMS THAT HE MAY HAVE HAD, THE JURY WOULD ARGUABLY BE ENTITLED
TO AWARD HIM SOMETHING FOR HIS PAIN AND SUFFERING. THE DEFENDANTS WOULD BE ENTITLED
TO RAISE THAT VERBAL THRESHOLD DEFENSE IN THAT CONTEXT. SO IT WAS NOT IN-APPLICABLE
COMPLETELY. IT WAS SIMPLY NOT A BAR TO THE CLAIMS THAT MY CLIENT SEEKS BECAUSE THOSE ARE
FOR ECONOMIC LOSSES. SO ALSO AS THE APPELLATE DIVISION SAID HERE, CASES
SUBSEQUENT TO CONTINENTAL HAVE NOT FOLLOWED ITS REASONING AS IT RELATES TO PUBLISHED
APPELLATE DIVISION OPINIONS. AND THAT STARTED -- THEY FOLLOWED LEFKIN. IT STARTED WITH
TALMADGE IN 2016 AND THEN OF COURSE LAMBERT AND THEN MOST RECENTLY WERE I WHAT THE APPELLATE
DIVISION DID HERE. SO IT'S TIME TO OVERRULE CONTINENTAL. SO I AM HERE TO
ASK THAT THE APPELLATE DIVISION OPINION BE AFFIRMED AND THAT THERE BE A CLEAR RULE OF
LAW THAT THE VERBAL THRESHOLD DEFENSE IS NOT A BAR TO WORKERS COMPENSATION SUBROGATION
MATTERS SUCH AS THIS. THAT CONCLUDES MY OPENING STATEMENT.
JUSTICE PATTERSON: WHEN YOU SAY SUCH AS THIS, ARE WE TALKING ABOUT ONLY ECONOMIC LOSS?
RESPONDENT: YES. BECAUSE THAT'S WHAT WE'RE SEEKING HERE. IN THE FORM
OF MEDICAL BILLS AND LOST WAGES. JUSTICE PATTERSON: WHEN YOU SAY IN CASES
SUCH AS THIS, YOU'RE TALKING ABOUT PURELY ECONOMIC LOSS CASES.
RESPONDENT: CORRECT. AND THEREFORE THE VERBAL THRESHOLD IS NOT A BAR TO THE CLAIMS THAT
MY CLIENT SEEKS IN THIS CASE FOR ECONOMIC LOSSES. JUSTICE ALBIN: THE QUESTION
I ASKED OF YOUR ADVERSARY, I WANT TO GO THROUGH IT AND SEE THE RESULT THAT YOU THINK SHOULD
BE ACHIEVED. RESPONDENT: OF COURSE, JUSTICE. JUSTICE ALBIN:
THE PLAINTIFF INSURED SUFFERS AN INJURY AT THE HAND OF A TORTFEASOR AND SEEKS COMPENSATION
FROM HIS PIP CARRIER. RESPONDENT: YES. JUSTICE ALBIN: UNDER
THAT CIRCUMSTANCE, YOU WOULD AGREE THAT THE ECONOMIC RECOVERY FROM THE PIP CARRIER IS NOT
A BASIS FOR THE PLAINTIFF TO SUE THE TORTFEASOR OR THE TORTFEASORS INSURANCE COMPANY,
CORRECT? RESPONDENT: CORRECT. JUSTICE ALBIN: SO NOW THE PIP
CARRIER PAYS. NOW THE PIP CARRIER SUES THE WORKER'S COMP CARRIER FOR REIMBURSEMENT,
WHICH THE STATUTE PERMITS, CORRECT 70. RESPONDENT: YES. ABSOLUTELY.
JUSTICE ALBIN: NOW THE WORKER'S COMP PAYS. NOW YOUR ARGUMENT IS THAT THE WORKER'S COMP
CARRIER CAN NOW GO AFTER THE TORTFEASOR's INSURANCE COMPANY? RESPONDENT:
ABSOLUTELY. WHICH IS THE SAME THING LAMBERT SAID BY ALLOWING AN INJURED EMPLOYEE TO
SUE A TORTFEASOR FOR MEDICAL BILLS. JUSTICE ALBIN: SO IT LOOKS TO ME --
I'M TRYING TO THINK OF THE POLICY REASON WHY THE LITIGATION IS DOING WHAT IT'S DOING.
IT'S MAKING A DETERMINATION WHAT INSURANCE CARRIERS SHOULD BE CARRYING IT. BECAUSE
SOMEONE'S GOING TO BE PAYING INCREASED PREMIUMS. IF IT'S FALLING ON THE AUTOMOBILE SIDE,
IT'S GOING TO BE INCREASED PREMIUMS TO PEOPLE WHO ARE PURCHASING AUTOMOBILE INSURANCE.
IF IT GOES ON THE WORKER'S COMP SIDE IT'S GOING TO BE FACTORED INTO AN INCREASE IN GOODS.
IT'S -- ONE WAY OR THE OTHER, THE MONEY IS GOING TO BE PUSHED OFF TO THE CITIZENRY. THE
QUESTION IS WHERE. AND IT SEEMS TO ME, WHEN IT MADE THE DECISION TO ALLOW THE PIP CARRIER
TO SEEK RECOVERY FROM WORKER'S COMP, IT WAS MAKING A POLICY DECISION, WE'RE TRYING TO
KEEP THE INSURANCE PREMIUMS DOWN. AND YOUR ARGUMENT WOULD SEEM TO CIRCUMSTANCE CAN YOU
TELL ME NAVIGATE THAT PARTICULAR RESULT. RESPONDENT: THE BEST ANSWER I CAN
GIVE YOU TO THAT IS INITIALLY WE'RE TALKING ABOUT HOLDING A TORT RESPONSIBLE, NOT A PIP
CARRIER. JUSTICE ALBIN: LET'S ASSUME THESE PEOPLE HAVE INSURANCE CARRIERS.
RESPONDENT: BUT IT'S A LIABILITY CARRIER. SO THE LIABILITY CARRIER WHEN
IT SOLD THAT POLICY TO THE DEFENDANTS IN THIS CASE ALREADY FACTOR ND THE FACT THAT THEY
MIGHT BE LIABLE FOR SOMETHING HERE. SO I DON'T THINK THERE'S GOING TO BE AN INCREASE
IN PREMIUMS. THEY'VE ALREADY FACTORED THAT IN. JUSTICE ALBIN: YOU COULD
SAY THE SAME THING FOR PIP CARRIER. I MEAN THE SAME INSURANCE COMPANY THAT'S SELLING
THE PIP POLICIES IS SELLING THE LIABILITY POLICY. SO WHETHER IT'S COMING OUT OF THE LIABILITY
POLICY OR THE PIP POLICY, THAT WOULD RESULT IN AN INCREASE IN PREMIUMS. AM I MISTAKEN?
RESPONDENT: I BELIEVE YOU ARE, JUSTICE. AND HERE'S WHY. BECAUSE WHEN
AN INSURANCE CARRIER CHOOSES TO SELL LIABILITY INSURANCE, THEY ARE RECOGNIZING THE FACT
THAT THEY MAY HAVE TO PAY THAT CLAIM OUT. RIGHT? SO THEREFORE THEY FACTOR THAT ANALYSIS
INTO THEIR ANALYSIS THE FACT THAT A LIABILITY CARRIER MAY HAVE TO PAY. IT WOULD BE
DIFFERENT IF I WAS TRYING TO SAY THAT A PIP CARRIER SHOULD NOW BE RESPONSIBLE TO HAVE TO
PAY. JUSTICE ALBIN: WHY DO YOU THINK THE LEGISLATURE DECIDE TO DO PERMIT
THE PIP CARRIER TO SEEK A RECOVERY FROM WORKER'S COMP? RESPONDENT: BECAUSE,
UNFORTUNATELY, PIP CARRIERS DON'T ALWAYS PAY WHEN THEY SHOULD. AND THEREFORE A FIGHT
BROKE OUT BETWEEN A PIP CARRIER AND A WORKERS COMPENSATION CARRIER OVER WHO SHOULD PAY.
AND WHO SUFFERED IN THAT INSTANCE? THE INJURED EMPLOYEE. SO THE LEGISLATURE SAID, LOOK,
WE'RE NOT GOING TO PUT UP WITH THIS. WHAT WE'RE GOING TO DO IS, WE RECOGNIZE YOU GUYS
MAY HAVE A FIGHT. NUMBER ONE, WE WANT ULTIMATELY THE WORKERS COMPENSATION CARRIER TO BE
RESPONSIBLE BUT BECAUSE WE RECOGNIZE THAT A WORKERS COMPENSATION PROCEEDING MAY TAKE
YEARS OR MONTHS TO RESOLVE, ALL THE WHILE WE DON'T WANT THAT INJURED EMPLOYEE TO SUFFER
SO THEREFORE WE'RE GOING TO SAY, YOU, MR. PIP CARRIER, YOU'RE GOING THE PAY THESE BENEFITS
FOR NOW, BUT IF IT TURNS OUT, IT TURNS OUT THAT THE WORKERS COMPENSATION CARRIER SHOULD HAVE
BEEN PAID. WHEN THEY'RE INJURED ON THE JOB TO MAKE SURE THAT THEY'RE COMPENSATED.
JUSTICE PATTERSON: BUT YOU DON'T SEE THAT PROVISION AS AN EXPRESSION OF THE
LEGISLATURE'S INTENT THAT WHEN WE ARE FORCED TO A CHOICE BETWEEN COMP CARRIERS AND PIP
CARRIERS, THE LATTER PREVAILS. YOU'RE SEEING THAT AS A VERY NARROW CIRCUMSTANCE WHERE
PIP BENEFITS ARE -- RESPONDENT: YES. BECAUSE OF THAT STATUTE. BECAUSE
WE DON'T WANT THE INJURED EMPLOYEE TO BE IS STUCK IN LIMBO. SO THEREFORE WE'RE GOING
TO MAKE SOMEBODY PAY. BUT ULTIMATELY THE ULTIMATE SOURCE MAY BE DOWN THE ROAD THE
WORKERS COMPENSATION CARRIER BUT THEN THEY TAKE IT ONE STEP FURTHER AND SAY WHEN YOU LOOK
AT THAT BETWEEN A WORKERS COMPENSATION CARRIER AND A TORTFEASOR, WHO SHOULD PAY? IT'S
THE TORTFEASOR SHOULD PAY. JUSTICE FERNANDEZ-VINA: IF THERE'S NO INTENT
-- BECAUSE WE'RE NOT TALKING TORTFEASOR NOW, WE'RE TALKING INITIAL SUBROGATION. THE FACT
THAT THE INDICATED (INAUDIBLE) BEAR THESE EXPENSES? RESPONDENT: WELL,
YES. BUT ULTIMATELY IF THOSE EXPENSES THAT THE WORKERS COMPENSATION CARRIER HAD TO PAY ARE
THE RESULT OF THE ACTIONS OF A TORTFEASOR, THE LEGISLATURE SAID WE'RE GOING TO ALLOW YOU
TO GET YOUR MONEY BACK, MR. WORKERS COMPENSATION CARRIER, WHICH IS WHAT I'M DOING HERE.
JUSTICE PATTERSON: YOU HEARD THE QUESTIONS EARLIER. AM I CORRECT THAT IN
LIMITING SUBROGATION BECAUSE OF THE FACT THAT IT WAS COMPENSATED, THE TRIAL COURT HAS
IN ESSENCE SAID THAT -- TO THE INJURED EMPLOYEE IN THIS CASE, YOU GOT PAID BY THEM AND
THEREFORE THEY DON'T GET PAID? RESPONDENT: I TOTALLY AGREE WITH THAT,
JUSTICE. AND QUITE FRANKLY I HAD NOT THOUGHT OF THAT ARGUMENT UNTIL YOUR HONOR MENTIONED
IT. THAT'S WHY YOU'RE UP THERE AND I'M DOWN HERE. IN ADDITION, JUSTICE, IT WAS THE MERE
FACTOR THAT IF THAT EMPLOYEE HAD RECEIVED DOLLAR ONE FROM A TORTFEASOR, THAT IMMEDIATELY
WOULD HAVE TO GO BACK TO ME AS THE WORKERS COMPENSATION CARRIER. HENCE TO ME THAT MAKES
IT UN-COMPENSATED AS WELL. SO I LOOKED AT IT FROM THAT VIEWPOINT AND I THINK WHEN IF
YOU READ THE AICRA -- THE DEFINITION OF UN-COMPENSATED, WHAT REALLY THE LITIGATION
WAS TALKING ABOUT THERE WAS OUTSTANDING. OUTSTANDING IS REALLY WHAT THAT MEANS. BUT
IN THIS CONTEXT IF THAT EMPLOYEE RECEIVED A DOLLAR, IT WOULD COME BACK TO ME AS THE COMP
CARRIER. JUSTICE PATTERSON: LET ME SEE IF I UNDERSTAND YOUR RESPONSE.
YOU'RE SAYING YOU OBVIOUSLY HAVE THE SUBROGATION RIGHT IF THEY GOT PAID. OR LIEN.
RESPONDENT: YES, JUSTICE. JUSTICE PATTERSON: YOU HAVE THE RIGHT TO GET
THAT BACK. RESPONDENT: YES. JUSTICE PATTERSON: IF UN-COMPENSATE
D IS TAKEN SO LITERALLY AS TO MEAN ANY TIME A PERSON DIDN'T GET A BILL PAID, THEN THAT
WOULDN'T HAPPEN EITHER. RESPONDENT: I WOULD NEVER HAVE A CLAIM.
JUSTICE PATTERSON: SO WHAT DOES UN-COMPENSATED MEAN IN THAT -- RESPONDENT:
UN-COMPENSATED MEANS VIEWED IN THE CONTEXT OF IF THAT EMPLOYEE RECEIVED A DOLLAR FROM
A TORTFEASOR, HE OR SHE WOULD HAVE TO IMMEDIATELY REIMBURSE THE WORKERS COMPENSATION CARRIER.
THAT'S WHAT MAKES IT UN-COMPENSATED. NOW, IN PRACTICALITY, WOULD AN EMPLOYEE EVER DO
THAT AND WORK FOR ME AND TRY TO GET MY CLIENT'S LIEN REIMBURSED? PROBABLY NOT. BUT THAT
DOESN'T MATTER. IT'S WHAT THE LEGISLATURE SAYS IN THE STATUTE AND WHAT THE APPELLATE
DIVISION HAS SAID MOST RECENTLY OF COURSE HERE BUT OF COURSE JUST PRIOR TO THAT IN LAMBERT
ALLOWING AN INJURED EMPLOYEE TO FLAT OUT PURSUE A TORTFEASOR IN A CAR CRASH CASE FOR PAID
MEDICAL BILLS. THOSE MEDICAL BILLS WERE PAID. THEY WERE NOT UN-COMPENSATED. AND LAMBERT
CLEARLY ALLOWS -- WHY IS THAT? WE WANT TO HOLD THAT TORTFEASOR RESPONSIBLE.
JUSTICE PATTERSON: IT DOESN'T MEAN THE PAID MEDICAL BILLS. YOU'RE SAYING IT DOESN'T MEAN
A SITUATION LIKE THIS WHERE THERE IS A SUBROGATION RIGHT. WHAT CATEGORY DID THE
LEGISLATURE INTEND TO MEAN THAT WERE UN-COMPENSATE SND. RESPONDENT: I THINK
THEY MEANT TO USE THE WORD OUTSTANDING. JUSTICE PATTERSON: OUTSTANDING
AND UN-PAID BY ANYBODY. RESPONDENT: RIGHT. AND REMEMBER THAT COMES UP IN
TWO PLACES. WE HAVE IT IN THE RACK A STATUTE AND THEN WE HAVE IT AGAIN IN THE ARC CONVERSE
COMPENSATION ACT, THE USE OF THAT PHRASE. BUT I THINK IF YOU LOOK AT FRIT AICRA'S STANDPOINT,
IT MAEL MEANT OUT STANDING IS THE BETTER WORD. WHAT MAKES IT UN-COMPENSATED IS IF THAT
EMPLOYEE GOT A DOLLAR, HE COULD NOT KEEP IT. THEREFORE IT'S UN-COMPENSATED. YES, HIS
MEDICAL BILLS WERE PAID BUT THE MEDICAL BILLS WERE PAID IN LAMBERT AS WELL AND AS YOUR
HONOR HAS ALREADY POINTED OUT THERE WOULD NEVER BE A SITUATION WHERE I COULD SUBROGATE
BECAUSE I'M THE ONE WHO PAID THE BILLS THAT'S WHY I'M TRYING TO SUBROGATE. SO THEY'VE
BEEN PAID. THAT'S WHY THEY'RE NOT OUTSTANDING ANY MORE. JUSTICE ALBIN:
SECTION 40. THE RIGHTS THAT THE WORKER'S COMP CARRIER HAS ARE NO GREATER THAN THE --
THAN IT'S INJURED VICTIM, RIGHT? RESPONDENT: AGREED. JUSTICE
ALBIN: SO NOW GO BACK TO THE EXAMPLE I GAVE YOU. PIP CARRIER PAYS HIM OFF.
RESPONDENT: YES. JUSTICE ALBIN: HE CANNOT SUE DIRECTLY, RIGHT?
RESPONDENT: HE CAN. BECAUSE HE'S AN INJURED EMPLOYEE AND LAMBERT SAYS HE CAN. IF I'M
FOLLOWING YOU THROUGH, JUSTICE. JUSTICE ALBIN: NO. SO THE PIP CARRIER PAYS
ITS INSURED FOR HIS ECONOMIC DAMAGES. RESPONDENT: YES. JUSTICE
ALBIN: THE INSURED UNDER THOSE CIRCUMSTANCES CANNOT SUE THE TORTFEASOR FOR ECONOMIC
DAMAGES? RESPONDENT: IF I WILL ENDS RIGHT THERE, CLUL CORRECT.
JUSTICE ALBIN: SO WHY DOES IT CHANGE? WHY DOES THAT SENSE EXCHANGE WHEN THE PIP CARRIER
GETS REIMBURSED BY THE WORKER'S COMP CARRIER? BECAUSE UNDER THAT CIRCUMSTANCE, THE INS
URED FROM THE BEGINNING WAS NOT ABLE TO SUE. ARE YOU SAYING THAT THAT SENTENCE CHANGES
WHEN THE WORKER'S COMP CARRIER REIMBURSES THE PIP CARRIER? RESPONDENT:
NO, JUSTICE. AND THE REAL ANSWER THERE IS BECAUSE THE PIP CARRIER SHOULD HAVE NEVER
PAID ANY MONEY IN THAT INSTANCE. THE WORKERS COMPENSATION CARRIER IS PRIMARY.
JUSTICE ALBIN: THAT'S CONTRARY TO WHAT YOU JUST SAID EARLIER. BECAUSE YOU SAID THAT UNDER
THE STRUCTURE OR ON NO FAULT, PIP SHOULD BE PAYING IMMEDIATELY THE EXPENSES. THE INJURED
VICTIM SHOULD NOT HAVE TO GO THROUGH A COURT PROCEEDING. EVEN WORKER'S COMP. THAT TAKES
TIME. THE WHOLE PURPOSE OF THIS POLICY WAS TO ENSURE THE IMMEDIATE PAYMENT OF THE MEDICAL
BILLS BY PIP. CORRECT? RESPONDENT: AGREED. JUSTICE ALBIN:
THAT'S WHAT YOU SAID. RESPONDENT: I DID SAY THAT, JUSTICE. BUT THAT'S IN
THE CONTEXT OF WHERE THERE'S A WORKERS COMPENSATION CLAIM BEING BROUGHT AS WELL.
IT'S NOT A SITUATION WHERE IT'S PIP AND THERE'S NO WORKERS COMPENSATION CLAIM. THERE IS
A WORKERS COMPENSATION CLAIM. BUT WHEN THERE'S A DISPUTE IN THAT INSTANCE. AND TYPICALLY
WHAT HAPPENS IN ALL REALITY IS, THE WORKERS COMPENSATION CARRIER PAYS. BUT IF THERE'S
A DISPUTE, STANDARD PIP APPLICATION, ONE OF THE QUESTIONS IS WHAT, IS THIS A WORKERS
COMPENSATION CLAIM, DO YOU HAVE WORKERS COMPENSATION INSURANCE. WHAT THE LEGISLATURE
DOESN'T WANT IS WHAT I SAID EARLIER, FOR A DISPUTE TO ARISE WHETHER THOSE BENEFITS SHOULD BE
PAID THEREFORE PIP STEPS IN. BUT ULTIMATELY YOU MR. COMP CARRIER, YOU'RE THE ONE WHO'S
RESPONSIBLE FOR PAYING THESE BENEFITS. JUSTICE ALBIN: WHEN IT'S JUST ECONOMIC
DAMAGES IT MAKES SENSE FOR THE INSURED JUST TO GO TO ITS PIP CARRIER. IT DOESN'T HAVE
TO GO TO COURT. IT MAKES A CLAIM AND GETS ITS MEDICAL BILLS PAID. UNDER THAT CIRCUMSTANCE,
THE INSURER CANNOT SUE THE TORTFEASOR BUT THE PIP CARRIER WILL SEEK RECOVERY FROM THE
WORKER'S COMP. RESPONDENT: YES. AND THAT'S BECAUSE WE ULTIMATELY WANT THE
WORKERS COMPENSATION CARRIER TO BE THE PRIMARY PAYER. AND THERE ARE ADDITIONAL --
JUSTICE SOLOMON: LET ME PICK UP SOMETHING JUSTICE ALBIN WAS ASKING. I'M NOT SURE --
I GUESS IT COULD HAVE. YOU HAVE A DISPUTED COMP CLAIM. PIP CARRIER PAYS. NO VERBAL
THRESHOLD. THE NO THRESHOLD PROVISION IN THE POLICY. SUES FOR PAIN, SUFFERING AGAINST
THE THIRD PARTY. RESPONDENT: NO, HE CANNOT. JUSTICE SOLOMON:
BOARD THEM. PUT THEM ON THE BOARD FOR TRIAL. SO WHEN HE RECOVERS, WAS IT CONTINENTAL
THAT SAID THAT OR LAMBERT THAT SAID THAT, WHEN HE RECOVERS AND HE GETS NOT MEDICAL, NOT
LOST WAGES AND HE'S GOT THAT TORT OF $50,000 I THINK IT WAS IN THE CASE I'M REFERRING
TO, THE COMP LIEN NOW, THE COMP CARRIER HAS NOW KICKED N THEY LOST. THEY'VE NOW KICKED
N THEY GOT A FULL LIEN AGAINST THE 250? RESPONDENT: I THINK YOU JUST CHANGED
THE FACTS A LITTLE BIT THERE, JUSTICE. I UNDERSTOOD YOU TO MEAN THERE WAS NO COMP
CLAIM. S DISPUTED COMP CLAIM. SO PIP CARRIER PAYS LOST WAGES, MEDICAL EXPENSES. THE
TRIAL GOES FORWARD. RESPONDENT: YES. JUSTICE SOLOMON: DOES
EVERYTHING GO ON THE BOARD? RESPONDENT: I THINK IN THAT INSTANCE WHAT
WOULD HAVE TO HAPPEN IS THE WORKERS COMPENSATION CARRIER WOULD STEP IN AND INTERVENE IN
THE UNDERLYING TLM. YOU MAY HAVE TO TRY IT TWICE BECAUSE IN YOUR HONOR's INSTANCE, THOSE
WOULD NOT BE BOARD DISABLE BECAUSE THERE'S NO WORKERS COMPENSATION LIEN AT THAT POINT.
SO THAT EVIDENCE YOU JUST SUGGESTED IS COMPLETELY IN-SIBL. BUT IT MAY COME BACK LATER
ON. JUSTICE SOLOMON: THE ANSWER IS THERE'S THO ANSWER TO THAT QUESTION BECAUSE
I'M NOT AWARE ANYWHERE THAT SAYS THAT'S KIND OF THE WAY IT GOES. I KNOW THAT THE COMP
CARRIER MAY MOVE FOR A STAY AND THE TRIAL JUDGE IS GOING TO SAY -- I WON'T TELL YOU WHAT
HE'S GOING TO SAY. JUSTICE FERNANDEZ-VINA: HE'LL SAY NO.
JUSTICE SOLOMON: I WAS GOING TO SAY SOMETHING DIFFERENT. RESPONDENT: MAYBE
THERE'S A JURISDICTIONAL ARGUMENT THERE AS WELL. BECAUSE WORKER COMPENSATION MATTERS
CANNOT BE HEARD BY THE SUPERIOR COURT. I HAVE NOT ENCOUNTERED THAT SCENARIO. THERE'S
A POSSIBILITY OF TRYING THE CASE TWICE BECAUSE THEN IF THE WORKERS COMPENSATION CARRIER
DID PAY THEY WOULD IN ESSENCE HAVE A LIEN AT THAT POINT AND THEREFORE IT SHOULD BE BOARD
DISABLE IN THAT INSTANCE. JUSTICE SOLOMON: I DON'T REMEMBER WHICH CASE SAID
WHAT, BUT IN ONE OF THE CASES THERE WAS A SETTLEMENT OR A PAYMENT FOR PAIN AND
SUFFERING AND THE COMP CARRIER EFFECTIVELY INTERVENED AND ASSERTED A LIEN FOR
PERMANENCY, WHICH IS PAIN AND SUFFERING, AND LOST WAGES AND MEDICAL EXPENSES.
RESPONDENT: THAT IS LAMBERT. THAT IS LAMBERT. JUSTICE SOLOMON: HOW IS THAT
RIGHT? RESPONDENT: WELL, FROM DOING THIRD PARTY WORK, ONE OF THE THINGS
THAT I OFTEN STRUGGLE WITH IN PLAINTIFF CASES, YOUR HONOR, WAS, SINCE I HAVE TO RE-PAY
LET'S SAY THE PERMANENCY PORTION OF THE AWARD OR EVEN BEFORE LAMBERT WHEN I HAD TO RE-
PAY THE MEDICAL EXPENSES, BEFORE LAMBERT I COULDN'T SUE THAT TORTFEASOR TO GET THOSE
MEDICAL BILLS BACK BUT I STILL HAVE TO PAY THAT PERMANENCY AWARD AND I OFTEN FOUND IT UN-
FAIR I WAS NOT ABLE TO BOARD THE PERMANENCY AWARD EVEN THOUGH I HAD TO REIMBURSE IT. NOW,
IF YOU LOOK AT LAMBERT, AS IT RELATES TO THE LOST WAGES PORTION OF THE WORKERS COMPENSATION
LIEN, THE DISPUTE WAS OVER MEDICAL BILLS, THE LOST WAGES PORTION OF THE LIEN, THE PLAINTIFFS,
IN CONSOLIDATED CASES, IN SEELTHS CASE AGREED TO RE-PAY THE WORKERS COMPENSATION CARRIER
FOR THOSE LOST WAGES. THAT WASN'T EVEN IN DISPUTE. IT WAS JUST THE MEDICAL BILLS ONLY
WHICH LAMBERT SAID YOU COULD PURSUE A TORTFEASOR IN THAT INSTANCE. JUST TO
CONCLUDE, I WOULD ASK AGAIN THAT THE APPELLATE DIVISION OPINION BE AFFIRMED AND WE HAVE
A NICE CLEAR BRIGHT LINE RULE THAT BECAUSE THESE ARE ECONOMIC LOSSES -- NON-ECONOMIC LOSSES,
THE VERB THRESHOLD OFFENSE IS IN-APPLICABLE. RESPONDENT'S ATTORNEY:
FO PARTICIPATES IN THIS LEGAL ARGUMENT OUR KERJ IN WANTING TO GETS INVOLVED
IS THERE A THE PROCEDURAL POSTURE OF THIS CASE I THINK IS ACTUALLY QUITE RARE WHERE
UF THE WORK KONL P EMPLOYER SUING THE TORT FEASOR TO COLLECTS A PORTION OF THE
LENL I THINK WHAT IS MUCH MORE COMMON AND EXISTS THROUGHOUT ALL THE COURTS OF THIS
STATE IN SIGNIFICANT NUNLS ARE CLAIMS BY THE ACTUAL EMPLOYEES, THE EMPLOYEE IS
IN A CAR CRASH AND THE EMPLOYEE SUES THE TORT FEASOR AND HE WAS HURT IN THE COURSE
OF HIS EMPLOYMENT SO HE'S COLLECTED WORKERS' COMPENSATION BENEFITS SO LEEZ NOW
KNOWS IN THE COURSE OF THIS THIRD PARTY CASE HE IS NOT ONLY SUING FOR PAIN
PAIN AND SUFFERING BUT HE IS SUFFERING FOR THE NEL BILLS IN A HELPS EMPLOYER HAS
PAID AND THE DISABILITY THAT HIS EMPLOYER HAS PAID BECAUSE HE HAS TO REIMBURSE
THOSE THINGS BACK TO HIS EMPLOYER UNDER SECTION 40 OF THE WORK COME MANY STATUTE
SO THE WAY THE CASE IS PRESENTED TO THE JT IN A VERBAL THRESHOLD WHICH IS
WHAT WE ARE DEALING WITH HERE IS THE EMPLOYEE PRESENTS THE ELEMENTS OF HIS MEDICAL
BILLS, HE PRESENTS THE ELEMENTS OF THE HIS LOFTD WAGE, AND HE TRIES TO CONVINCE
THE JURY THAT HE HAS ALSO SUFFERED A PERMANENT INJURY SO THAT HE CAN GET A PAIN
AND SUFFERING AWARD. AND THERE WAS A QUESTION POSED BY THE JUSTICE AS TO
WHETHER THE LEGISLATURE WOULD BE OPPOSED TO SORT OF SHIFTING THE RESPONSIBILITY
BACK TO THE LIABILITY INSURER AS OPPOSED TO THE WORKERS COMPENSATION SYSTEM
AND I WOULD LIKE TO ANSWER THAT QUESTION BECAUSE I DON'T THINK THEY ARE OPPOSED
BECAUSE IF THAT EMPLOYEE CAN PROVE TO THE JURY THAT HE HAS SUFFERED A PERMANENT
INJURY, THEN HE IS ALLOWED TO GET THE MEDICAL BILLS AND THE TEMPORARY DISABILITY
THAT HIS. JUSTICE ALBIN: WHAT DOES THAT HAVE TO DO
REQUEST THE WORKERS COMPENSATION CARRIER. Q. THAT IS AN INDIVIDUAL RIGHT
OF THE INSURED TO SUE. WHAT DOES THAT HAFZ TO DO WITH WHETHER OR NOT THE PIP
CARRIER OR THE WORKERS COMPENSATION CARRIER IS? RESPONDENT'S ATTORNEY:
IN THAT SITUATION THE PIP CARRIER IS NOT INVOLVED ONLY THE WSHG CARRIER IS
INVOLVED. SO IT'S NOT LIKE THE LEGISLATURE IS SAYING IN A VERBAL THRESHOLD CASE
YOU CAN'T SUE FOR THE MEDICAL BILLS AND TEMPORARY DISABILITY THAT YOUR
EMPLOYER HAS HAD YOU ARE ALLOWED TO RECOVER THAT FROM THE TORT FEASOR AND IF HE
HAS ASSURANCE POLICY THE INSURER HAS TO INDEMNIFY THEIR INSURED AND PAY THAT
MONEY AND THEN WHEN I COLLECT THE MONEY I RENL BURS WORKERS COMP.
APPELLANT'S ATTORNEY: NATIONAL FATS IS HERE TELLING US AFFIRM WITH A TWIST THE APPELLATE
DIVISION AND THE YOU'RE INDICATING. JUSTICE PATTERSON: PAT
THAT YOU ARE NOT HERE ON BEHALF AS MUCH AS YOU MAY LOVE LAWYERS FOR COMP
CARRIERS, THEY ARE NOT THE CLOSEST TO YOUR HEART YOU ARE HERE FOR PLAINTIFFS WHO
WOULD BE ASSERTING THEIR OWN CLAIM. RESPONDENT'S ATTORNEY:
YES PATS PATS WHAT INL WONLTDZ ERG ABOUT ANG I MAFRP MISS UNDERSTOOD SOMETHING
IS WHY YOU ARE CONCERNED WITH THE TRIAL COURT'S DECISION IN THIS CASE SINSZ IT
WAS SO HEFRLLY INL FUSED WITH STATUTORY PROVISIONS ON SUBROGATION AND CONSENTS
OF SUBL BROE GAS STATION. STATED SIMPLY, HOW COULD THE TRIAL COURT'S DECISION
HURT INDIVIDUAL PLAINTIFFS AS OPPOSED TO COMP CARE YERGS. MR.
ALBUQUERQUE: BECAUSE THE RIGHTS OF THE EMPLOYER AND THE EMPLOYEE ARE EXACTLY THE
SAME UNDER SECTION 40 OF THE WORKERS COMPENSATION LIEN AND THE RIGHTS OF
SUBROGATION SO WHATEVER YOU HOLD HERE AS TO THE RIGHTS OF THE EMPLOYER, IS GOING
TO BE EXACTLY WHAT IS GOING TO APPLY TO THE RIGHTS OF THE EMPLOYEES WHO
ARE REALLY THE WONTS BRINGING THESE CLAIMS THROUGHOUT THE STATE. SO IF YOU HOLD
IF YOU OVER TURN THE ANGS AND SAY THAT AN EMPLOYER CANNOT COLLECT MEDICAL
BIN FITS PAID AND TEMPORARY DISABILITY PAID UNLESS THEY SATISFY THE VERBAL THRESHOLD,
WHICH IS REALLY THE CRUX OF THE QUESTION HERE, IF YOU HOLDS THAT AND OVER
TURN IT APPELLATE DIVISION, THAT IS GOING TO APPLY TO EVERY EMPLOYEE ACTION. IF
YOU A FIRM THE APPELLATE DIVISION THEN ME REPRESENTING AN INDIVIDUAL EMPLOYEE
SUING A TORT FEASOR NOT ONLY AM I IN THERE FIGHTING TO COLLECT MY HOPEFULLY AWARD
FOR PUFRGS IF I CAN PROVE A PERMANENT INJURY BUT INL ALSO IN THERE FIGHTS
ING TO GET BACK THE MROENL THAT MY EMPLOYER PAID FAU FAUGS IF THE EM MRO IR HAS
NO RIGHT THEN HE ALSO HAS NO RIGHT AGAINST YOUR CLIENT THE EMPLOYEE SO HOW IS
YOUR CLIENTD HURT HE COLLECTS ON THE THIRD PARTY ACTION FOR WHATEVER, WORKERS
COMP CARRIER CAN'T GO AGAINST HIM, OR THE TORT FEASOR SO YOUR CLIENT LOSE EAST
NOTHING IT IS A NET NET NET. RESPONDENT'S ATTORNEY: THAT IS
CLUL CORRECT. Q. NO LOGS? A. IN TERMS OF HE IS NOT
PULLING MROENL OUT OF HITSZ POCKET FAUS FAUSZ RIGHT. RESPONDENT'S
ATTORNEY: BUT THE EVEN MR. E HAS AN I DUT I TO COOPERATE WITH THE MRENL WHO DEKTS
THE BENEFITS THE EMG MORE HAGS PAID ONLY HIS BEHALF. Q. HE SHOWS
UP AND TESTIFY AT DEPOSITION THE EMPLOYER HAS THE INSUREDS HAVE A DUTY TO HELP
DIRECT DEFENSE OF THEIR CASES EVERYONE THE POLICY HAFZ A DUTY TO YOU KNOW
HI WITH THE LITIGATION DEFENSE THERE IS NO MONEY OUT OF USH I AM SORRY THERE IS
NO MONEY OUTS OF YOUR CLIENT POCKET IF THE WORKERS COMPENSATION CARRIER CAN'T
COLLECT IT EITHER? MR. ALBUQUERQUE: THAT IS TRUE JIGS
TUESDAY BUT ONCE THE EMPLOYEE SUES HE MUSZ GO AFTER THE MEDICAL BILTS THAT HIS
EMPLOYER PAID AND THE TEMPORARY DISABILITY THAT HIS EMPLOYER PAID BECAUSE ONCE I
FILE SUIT ON BEHALF OF THE EMPLOYEE THE EMPLOYER IS BARRED BY SECTION 40
TO BRING THEIR OWN ACTION THEY ARE TOTALLY RELIANT UPON ME TO COLLECT THEIR LIEN
ABL ITEMS. JUSTICE FERNANDEZ-VINA: MY POINT IS IF THERE
IS NO ACTION BY A LOUTD BY THE EMPLOYER IF WE RULE THAT WAY THEN YOUR CLIENT DOES
NOT NEED THE HELP BECAUSE THERE IS NOTHING EVER GOING TO DOM FROM YOUR CLIENLTSD
FROM THE EVEN MRO IR BY WAIVER LIEN CASE KA PRACTICALLY SPEAKING WE ARE STIMG GOING
TO BRING THE CLAMENTS BECAUSE THE TRUTH OF THE MATTER IS WE ARE ONLY BRINGING
THESE CLAIMS BECAUSE WE BELIEVE WE CAN PROVE A PERMANENT INJURY. WE ARE NOT OUT
THERE FILING SUITS ON BEHALF OF EMPLOYEES JUST TO COLLECT THE MEDICAL BILLS AND
THE TEMPORARY DISABILITY THAT THE EMG I AM SORRY PAID BECAUSE IN THAT SITUATION
EVEN IF YOU WIFRN THERE IS NO NET BENEFIT TO YOUR CLIENTS YOU ARE NOT DPO FOR
EXAMPLE TO PUT YOUR CLIENTD THROUGH A LITIGATION WHERE LEASE NOT GOING TO
GET ANYTHING OUT OF IT. JUSTICE ALBIN: I WANT TO FOLLOW UP ON
JUSTICE FERNANDEZ/VINA'S QUESTION. THERE IS NO BAR TELL ME IF I AM MISTAKEN. FROM
THERE IS NOTHING BARRING THE PLAINTIFF FROM SUING THE TORT FEASOR AND SEEK
CAN WORKERS COMPENSATION AT THE SAME TIME IS THERE? YOU HAVE A THIRD PARTY AND
HE WAS INJURED AT WORK SO HE CAN SEEK BOTH AT THE SAME TIME. MR.
ALBUQUERQUE: HE CAN. JUSTICE ALBIN: SO I AM JUST NOT SEEING HOW
JUDGE PAL FRAN KNEES DECISION IN ANY WAY ADVERSELY AFFECTS THE INSURED,
THE PLAINTIFF. THE PLAINTIFF CAN SEEK HIS FULL RECOVERY FROM THE TORT FEASOR,
HE CAN GET WHATEVER HE CAN FROM THE WORKERS COMPENSATION PROVIDED THERE
IS NO DOUBLE RECOVERY, YOU GET FULLY REAMERICAN CIVIL LIBERTIES UNION RATED, THE
ONLY PROBLEM UNDER JUDGE PAL FRAN KNEES' DECISION IS FOR THE WORKERS
COMPENSATION CARRIER THE WORKERS COMPENSATION CARRIER CANNOT PROCEED AT PROCEED
AFTER THE LIABILITY THE LIABILITY CARRIER FOR THE DEFENDANT AND I AM TRYING TO
SEE HOW YOU GET HURT. MR. ALBUQUERQUE: BECAUSE AS A PRACTICAL
MATTER IN ORDER FOR ME TO PURE SULT THIRD PARTY I HAVE TO KNOW HOW MUCH
I HAVE TO PAY BACK TO THE EMPLOYER PALLET PAT IT IS REDUCES THE LIEN YOUR INTEREST
IN IT YOUR CLIENTS POTENTIAL CLIENTS INTEREST IN IT IS THAT AND THAT GOES'
WHY YOU ARE SUPPORTING THEM IS BECAUSE IF THEY ARE A LOUTD TO BRING THE ACTION
THAT IS BROUGHT HERE, THAT REDUCES THE ULTIMATE COMP LIEN THAT YOUR CLIENT
FACES IN THE ACTION AGAINST THE TORT FEASOR. MR. ALBUQUERQUE: YES
BECAUSE WEERT ONE BRINGING THESE CLAIMS I KNOW THIS CASE IS THE EMPLOYER BUT
WEERLT ONES BRINGING THE CLAIMS I BELIEVE THE MAJORITY OF THE TIME IS THE EMPLOYEE
IS SUING THE TORT FEASOR NOT THE EMPLOYER SUING THE TORT FEASOR AS IN THIS
CASE PATS PAT THERE IS GOING TO BE A LIEN ON YOUR RECOVERY FROM THE COME CARRIER
SO YOU ARE A LINED YOUR INTERESTS ARE A LINED WITH THE COMP CARRIERS BECAUSE
EITHER WAY THIRD DEGREEING TO DPET BACK FROM YOU IF YOU SET LTD CASE.
MR. ALBUQUERQUE: YES AND THE COMP CARES WHY E WILL COOPERATE REQUEST US BECAUSE
THEY TWANTS TO GET THEIR KNOWN BACK FOR KNEE TO GO AFTER THAT TORLT FEASOR
I HAVE TO KNOW HOW MUCH MEDICINE TEMP AND FOINL IS GOING TO BEEN THERE BECAUSE
I HAVE TO PAY BACKS TWRO THIRDS OF THAT AMTH. JUSTICE SOLOMON:
BUT WHY ARE YOU INVOLVED AT ALL I MEAN IT SOUNTDZ LIKE YOU ARE MAKING THEIR
POINT WHY ARE YOU INVOLVED AT ALL IF THIS IS A VERBAL THRESHOLD CASE AND YOU AS
THE PLAINTIFF CAN'T SUE ANYBODY FOR ANYTHING UNLESS YOU BRING A COMP CLAIM OR A
PIP CLAIM, WHAT RIGHT DO YOU HAVE ANG IF THE COMP CARRIER STANDS IN YOUR
SHOES, WHAT RIGHT DOES THE COME 7 CARRIER HAVE? IT SOUNDS TO ME LIKE YOU ARE MAKING
THEIR POINT. MR. ALBUQUERQUE: I HOPE INL KNOW THE
MAKING THEIR POINT. JUSTICE SOLOMON: ING HETD. A. OUR
INTEREST IS WHATEVER YOU DECIDE HERE TODAY AS TO THE RIGHTS OF THE EMPLOYER TO COLLECT
THESE MONIES IT IS GOING TO BE BINDING ON ALL OF THE EMPLOYEES THAT WE REPRESENT
THROUGHOUT THE STATE. JUSTICE SOLOMON: THIS IS A VERBAL THRESHOLD
CASE. MR. ALBUQUERQUE: YES. JUSTICE SOLOMON:
IT AFFECTS ONLY THOSE CASES WHERE THE EMPLOYEE CAN'T SUE, RIGHT? SO
REGARDLESS OF HOW WE DECIDE THAT ISSUE, IT IS NOT GOING TO EFFECT YOU AT ALL.
MR. ALBUQUERQUE: THE EMPLOYER. JUSTICE SOLOMON: AND WHY
STHUD WE LOELD #I78 I AM SORRY I DON'T MEAN TO DO THIS WHY SHOULD BE DECIDE
THAT ISSUE IN THE INSURANCE IN THE WORKERS COMPENSATION INSURANCE CARRIERS FAVOR
IF THE EMPLOYEE CAN'T SUE? MR. ALBUQUERQUE: BECAUSE IF YOU
A FIRM THE APPELLATE DIVISION DECISION IN THIS CASE AND HOLD THAT AN EMPLOYER
CAN SUE A TORT FEASOR AND COLLECT MEDICAL BILLS AND IN DEJ NEW JERSEY TRANSIT WITHOUT
BEING ABLE WITHOUT HAVING TO SATISFY THE VERBAL THRESHOLD, THEN I CAN MAKE
THAT SAME ARGUMENT ON BEHALF OF THE #E78 MRE IN THE SAME TYPE OF CASE. SO THE
QUESTIONS ON MEDICAL BILLS, AND TEMPORARY DISABILITY. JUSTICE
FERNANDEZ-VINA: ENTIRE PURPOSE MUCH KRASHL CONTRACT IF YOU ARE ALLOWED TO STUDZ
LEENL THE HAPT THANLS KOEVEN OF EVEN MROIL YOU WERE DRIVING YOUR TRUSHG
TO MAKE A DELIVERY NOW YOU THROW OUT THE VERBAL THRESHOLD YOU THROW OUT ACHES
CONTRACT, ANG THAT'S THE IJD OF IT COST NTS THAT DESTROY IT AND WHERE IS THE
HARM TO YOUR CLIENT IF WE SAY THE WORKERS COMPENSATION CAN SGLIERJTS CARRIER CANNOT
PROCEED AGAINST THE PIP THE TORT FEASOR BECAUSE IF THEY CAN'T THEY HAVE
NO LIEN AGAINST YOU EITHER THEY ARE NOT ALLOWED TO BE COMPENSATE THE FOR THESE
FEES SO YOU DON'T LOSE ANY MONEY WOFRN WAY OR THE OTHER YOUR CLIENT DOESN'T
HA I HAVE KNOW WORRY ABOUT OUT OF HIS PAIN AND SUFFERING AWARDS PAYING MONEY BACK
TO THE COME CARRIER BECAUSE IT DOESN'T EXIST SO THAT CONSIDERATION IS NOT AN
ISSUE ANY LONGER. MR. ALBUQUERQUE: IF YOU RULE THAT AICRA
IS MORE PORN THAN THE WORKERS COMPENSATION ACT THEN YOU'RE CORRECT BUT AS LAMBERT
HELD AND AS I THINK THE COURT HERE HELD, WHEN THEY STATED THAT THE ISSUE IS
GOVERNED BY THE WORKERS COMPENSATION ACT AND NOT AICRA THAT IS THE POINT WE ARE
TRYING TO MAKE THE WORKERS COMPENSATION ACT SHOULD TAKE PRIORITY OVER THE
SUBROGATION RIGHTS OF THE EMPLOYER AND THE EMPLOYEE. BUT FOR THE NEGLIGENCE OF
THE TORT FEASOR, NOBODY IS HERE. EMPLOYERS NOT PAYING MEDICAL BILLS, EMPLOYERS
NOT PAYING TEMP. SO AT THE END OF THE DAY WHY SHOULD BE BENEFIT THE LIABILITY
TORTD FEASOR OVER THE EMPLOYER AND EMPLOYEE AND THE WORKERS COMPENSATION
CARRIERS THESE COURTS SAID WE SHOULDN'T WE AGREE WITH THAT AND WE'RE HERE
BECAUSE YOUR OPINIONS GOING TO ADDRESS THESE RIGHTS AS TO THE EMPLOYER BUT THEY
ARE GOING TO HAVE AFFECT ON HUNDREDS IF NOT THOUSANDS OF CASES WHERE THE
EMPLOYEE IS INVOLVED. JUSTICE PATTERSON: EVEN IF LIMITED TO
ECONOMIC LOSS, AND NO ISSUE ON THE VERBAL THRESHOLD. MR.
ALBUQUERQUE: THAT'S CORRECT FAT PAT THAT WOULD STILT HAVE THAT KIND OF IMPACT.
MR. ALBUQUERQUE: WELL IN A PRACTICAL MATTER I WOULD SAY NO
BECAUSE IF YOU HOLD THAT YOU HAVE TO PEERS THE VERBAL THRESHOLD TO GET THESE ELEMENTS
VT WORKERS COMPENSATION LIEN THEN OBVIOUSLY THE EVEN MRO I UNDERSTAND
ARNTS GOING TO BRING THESE TYPES OF STAND ALONE CASES BECAUSEED UNDERSTANDINGS IS
THE PERSONAL CAN'T MEET THE VERBAL THE EVEN MRI SKJTSDZ DMOEGS FO BRING
THEN ET ESH FAT PENNSYLVANIA THE WHAT THE COURTS HOLDING IS LIMITED NO MOTHER HOW
IT COMES OUT TO SITUATIONS WHERE THERE IS NO THE PLAINTIFF HAGS NOT MET THE
VERBAL THRESHOLD AND THE ONLY ISSUE BUT THE ON FLISHL IN IN ANY EVENT IS COMPLIK
LOSS WHICH WOULD NOT INL MROO I INDICATE THE VERBAL THRESHOLD?
MR. ALBUQUERQUE: YES. PATS BAT SEE WHAT I MEAN. A. THE QUESTION AND
CONCERN I WOULD HAVE IS HOW CAN YOU GIVE OR DELINEATE THAT THE EMPLOYER HAS THAT
RIGHT AND NOT GIVE THAT SAME RIGHT TO THE EMPLOYEE SINCE THEY BOTH DRIVER
FROM THE SAME EXACT STAT ULTIMATE. JUSTICE ALBIN: WE HAVE A VERBAL
THRESHOLD CASE. ARE YOU ASKING US TO DECIDE THIS CASE OUTSIDE OF THE FACTS
THAT WE HAVE BEFORE US. MR. ALBUQUERQUE: NO. WE JUST WANTS TO
OUR CONCERN IS THAT IF YOU HOLD THAT THE EMPLOYER DOES NOT HAVE TO SATISFY
THE VERBAL THRESHOLD TO COLLECT MEDICAL BILLS AND TEMPORARY DISABILITY, THAT THE
SAME EXACT THING WOULD APPLY TO AN EMPLOYEE WHO IS. JUSTICE
ALBIN: SO ASSUME THAT THEY ARE STUCK WITH THE VERBAL THRESHOLD. MR.
ALBUQUERQUE: YES. JUSTICE ALBIN: OKAY. TELL ME UNDER THOSE
CIRCUMSTANCES ARE YOUR CLIENTS GOING TO BE IN A MORE DIFFICULT POSITION AS A RESULT
OF JUDGE POLL FAN KNEES' RULING? ASSUMING THAT THEY'RE BARRED THEY CANNOT DO
WHAT WHAT THE INSURED COULD NOT DO, THE INSURED IS BARRED BY THE THIRD VERBAL
THRESHOLD AND THEREFORE THE WORKERS COMPENSATION IS GOING TO HAVE A SIMILAR BAR
UNDER THOSE CIRCUMSTANCES IS THE CLASS OF PLAINTIFFS WHO YOU ARE REPRESENTING
IN ANY WAY GOING TO BE HARMED OR DISTRESSED BY JUDGE PAL FRANL KNEES DECISION?
MR. ALBUQUERQUE: NO. JUSTICE ALBIN: OH OKAY.
CHIEF JUSTICE RABNER: ANYTHING ELSE YOU WOULD LIKE TO
PRESENT? RESPONDENT'S ATTORNEY: NO YOUR HONOR.
CHIEF JUSTICE RABNER: THANK YOU MR. MEDICAL ON YOU GET THE LAST WORD.
APPELLANT'S ATTORNEY: A FEW ISSUES I WOULD LIKE DID TO ADDRESS VERY BRIEFLY
IF I MAY. THERE WAS A QUESTION AS V ASKED ABOUT A FACTOR AND
PREEM #YU78S AND THE REALITY IS IN TERMS OF THOSE PREMIUMS THAT ARE ALREADY BEING
PAID FOR 22 YEARS WORKERS COMPENSATION CARRIERS HAVE NOT BEEN ABLE TO SUBL
BROE GAIT FOR THESE TYPES OF CLAIMS THAT WE ARE HERE ON TODAY SO THAT'S ALREADY
BILTS IN WHEREAS THE AUTO CARRIERS HAVE NOT BEEN PAYING THOSE LENS BACK SO
THAT WOULD RESULT IN A CHANGE OF PREMIUMS WHICH OBVIOUSLY WOULD EFFECT THE MOTOR
ORGANIZE PUBL WHO IS PAYING THE. JUSTICE SOLOMON: STOP RIGHT
THERE YOU ARE SAYING UP UNTIL TODAY? THEY EVER NOT BEEN SUCK BROE GAIT
ING FOR MEDICAL FOR ECONOMIC LOSSES. APPELLANT'S ATTORNEY: ONLY IN
THESE VERY NARROW NOT I AM NOT TALKING ABOUT LAMBERT INL TALKING ABOUT
MERCOGLIANO TYPE CASES TALKING ABOUT CONTINENT ALLEGE VERSUS MK CLEL LAN SOL SOOL
BAY CLIS FINLS' ON THEIR OWN AND COME PS ON THEIR OWN. APPELLANT'S
ATTORNEY: RIGHT. THERE HACH NOT -- SINTS CONTINENTAL CAME OUT IN 1996 SHLGS UP
UNTIL OUR CASE, THE OVERWHELMING CUSTOM OR THAT MAYBE THE WRONG WORD, PATD
PAT PRACTICE. APPELLANT'S ATTORNEY: PRACTICE THANK YOU HAS
BEEN THAT THESE CLAIMS DON'T EXIST. AND OBVIOUSLY YOU KNOW THIS PLAINTIFF IS
ATTEMPTING TO CHANGE THAT AND WHAT THE APPELLATE DIVISION DECISION IN THIS CASE
HAS NOW CREATED A DIFRG OPINION. JUSTICE SOLOMON: SO I MAY
ALREADY BE MISS REMEMBERING BUT YOUR POSITION IS WHEN THE WORKERS
COMPENSATION CARRIER ^ PACE ^ PAYS PIP BENEFITS ESSENTIALLY MEDICAL, ECONOMIC LOSS
THAT WOULD NORMALLY BE PAID BY PIP, THAT DOESN'T GO ON THE BOARD IN THE THISHD
PAERTD CLAIM IN A CLAIM AGAINST THE TORT FEASOR OR IT DOES AT THE TRIAL.
APPELLANT'S ATTORNEY: IN A THIRD IN THE CLAIM BY THE INJURED WORKER WHO IS ARGUE
ING THAT THEY MEET THE THRESHOLD OR MAYBE HAS NO TLERG HOENLD. Q.
AT TRIAL? A. YES THOSE I BELIEVE THAT'S WHAT I SAID ERL WHYER IS THAT
THEY CAN GO ON P BOARDS. Q. ISN'T THAT IN INCONSISTENT REQUEST WHAT YOU
JUST SAID? A. IT'S NOT BECAUSE -- THERE IS A BIG DIFFERENCE
SGLUFRNLTS BETWEEN THE CASE WHERE THE INJURED WORKER BRINGS THE CLAIM AND WILL OFFER
EVIDENCE OF THEIR MEDICAL EXPENSES AND THEIR LOST WAGES VERSUS WHAT WE EVER
HERE WHERE THE INJURED WORKER LAST MADE A DETERMINATION THAT THEY DON'T EVEN MEET
THE THRESHOLD. TYPICALLY THESE VERY MINOR ACCIDENTS MINOR INJURIES THERE
IS NOT A LOT TO THEM, AND THEY ARE NOT EVEN PURSUING A CLAIM. YOU KNOW THIS CASE
HAS MERCOGLIANO'S NAME IN IT BUT PROBABLY SINCE JANUARY OF 2015 HE HAS HADZ
NO INVOLVEMENT IN THIS CASE AT ALL. IT REALLY NOW FALSE ON HIS EMPLOYER NEW JERSEY
TRANSIT. JUSTICE SOLOMON: YOU BOLT AGREE BOTH SIDES AGREE
THAT THE ECONOMIC LOSS WHERE IT IS PAYABLE BY THE WORKERS COMPENSATION CARRIER
GOES ON THE BLACK BOARD IN A CLAIM AGAINST THE TORT FEASOR.
APPELLANT'S ATTORNEY: WHERE THE INJURED WORKER IS BRINGING TS CLAIM.
JUSTICE SOLOMON: OKAY. APPELLANT'S ATTORNEY: YES.
JUSTICE SOLOMON: BUT IN THE AN AKSZ ENS. JUSTICE PATTERSON: THEN
THE LIEN AFFECTS. APPELLANT'S ATTORNEY: RIGHT. JUSTICE
SOLOMON: BUT IN THE ABLGS ENS OF VAULT GOES THE VERBAL THRESHOLD, THEY CAN'T GET
THAT IN THAT CASE IN THAT LIMITED CASE WHERE THE VERBAL THRESHOLD HAS NOT
BEEN VAULTED THEY CAN'T DO THAT THEY CAN'T GET THAT MEDICAL THAT THEY COULD GET
IN THE NON-VERBAL CASE. APPELLANT'S ATTORNEY: WHEN IT'S SIMPLY
A WORKERS COMPENSATION CARRIER SUB BROE GAITING WHY E THEN THAT WOULD BE
BARRED AND IN TERMS OF THE. JUSTICE SOLOMON: OKAY.
APPELLANT'S ATTORNEY: THE IMPACT ONLY THE INJURED WORKER THEY DON'T HAVE TO PAY
ANYTHING BACK TO A WORKERS COMPENSATION CARRIER NLG THEY RECOVER SOMETHING
SO THERE IS KNOW E THERE IS NO HARM TO THE INJURED WORKER HERE YOU KNOW THERE IS
NO THREAT TO THEM THAT THEY ARE GOING TO OWE MONEY BACK TO THEIR WORKERS
COMPENSATION CARRIER. JUSTICE PATTERSON: THEY ARE KNOW THE SUING
IN THIS CASE. Q. IN THIS CASE THEY ARE NOT SUING?
JUSTICE PATTERSON: THERE IS NO THREAT AT ALL TO MR. MERCOGLIANO WHO PROBABLY DOESN'T
KNOW QUEER HERE TODAY. APPELLANT'S ATTORNEY: NO.
JUSTICE PATTERSON: AND DOESN'T CARE BECAUSE LEASE NOT GOING TO SUE HE IS NOT WOR
READS ABOUT A LIEN AND HE IS NOT GRELT TO GET MILT WHETHER FLI KIND OF CHARGE
FROM HIS COME CARRIER FRM I WHAT THAN THE TO LET YOU GET THROUGH YOUR TWO MRINS
LET'S SEE IF WE CAN DO THAT. APPELLANT'S ATTORNEY: THANK YOU
THE TWO OTHER ISSUES YOU JUST WANTED TO BRINGD UP MR. HUBER MADE THE COMMENT
THAT THE WORKERS COMPENSATION ACT WANTS REIMBURSEMENT BY THE TORT FEASORS AND I
WOULD DISAGREE WITH THAT. THE EM IN A SIS OF THE WORKERS COMPENSATION ACT
IS TO RENL BURS INJURED WORKERS. THEY DO ALLOW SUBROGATION BUT THE EMPHASIS IS NOT
ON REIMBURSEMENT, IF ANYTHING IN TERMS OF THE SUBL BROE GAS STATION IT IS
ON BALANCING THE PARTIES. WHAT THE WORKERS COMPENSATION ACT GOAL IS TO PREVENT
THAT DOUBLE RECOVERY SO THAT IF THE JUSHD WORKER COLLECTS HIS COMP BENEFITS
AND THEN PURE SUES A THIRD PARTY CLAIM AND COLLECT MONEY FROM THE TORT FEASOR,
THEY DON'T HAVE A DOUBLE RECOVERY, THEY HAVE TO REIMBURSE THE CARRIER THE COMP
CARRIER FOR THE MONIES THAT WERE PAID OUT SO I DISAGREE THAT THAT IS THE GOAL AND
EMPHASIS OF THE WORKERS COMPENSATION STATUTE. IN TERMS OF THE
PLAINTIFF'S CLAIMS I DISAGREE THAT THEY ARE ALL COMPLIK. AS I ARGUED EARLIER,
THOSE CLAIMS FOR PARTIAL PERMANENT DISABILITY ARE CERTAINLY NONE ECONOMIC IN NATURE
AND THEREFORE IT IS I THINK VERY IMPORTANT FOR DEFENDANTS IN THESE TYPE OF
CASES THAT THEY ARE ABLE TO RAISE THE VERBAL THRESHOLD AS A DEFENSE TO THOSE WHERE
THE COMP CARRIER IS BRINGING A CLAIM FOR THOSE PARTIAL PERMANENT DISABILITY
AWARDS. AND THEN FINALLY, AS TO THE NFRMENT J A J'S POSITION,
I I AGREE THAT JUDGE POLL FRAN KNEES' DECISION DOES NOT IMPACT INDIVIDUAL
PLAINTIFFS WHO MIGHT BE INTERESTED IN BRICKING A LAWSUIT. AS WE JUST NOTED
MR. MERCOGLIANO IN THIS CASE PROBABLY HAS NO IDEA THAT WE ARE HERE HE HAS NO INTEREST
IN THIS AND TYPICALLY THESE TYPES OF CASES THAT QUEER' HERE ABOUT ARE THOSE
SUBROGATION CASES. WE ARE NOT TALKING ABOUT HAVING AN JUSHD WORKER WHO HAS ANY
INTEREST IN THAT. IT'S LIMITED TO WORKERS COMPENSATION AND SUB BROE ACTIONS
PAL PAT LET ME UNDERSTAND THAT POINT IS THAT BECAUSE HAVING NOT MET THE VERBAL
THRESHOLD, HE'S NOT GOING TO SUE ANYBODY. APPELLANT'S ATTORNEY:
RIGHT. JUSTICE PATTERSON: HOON HE IS NOT GOING TO BE SNL TO
A LIEN SO THE SIZE OF A POTENTIAL LIEN IS NOT OF ANY CONCERN TO HIM.
APPELLANT'S ATTORNEY: EXACTLY. AT THAT POINT THEY EVER NO SKIN IN THE GAME. YOU
KNOW IT DOES END UP WITH THEIR NAME ON IT BUT OUTSIDE OF THAT THEY REALLY
MAY HAVE NO INVOLVEMENT UNLESS MAYBE THEY WOULD BE CALLED TO TESTIFY ABOUT WHAT
HAPPENED TO THEM IF THERE WAS EVER A TRIAL IN THAT. BUT AGAIN THEY HAVE NO
INTEREST IN THE OUTCOME. AND AS TO THE N J A J'S INTEREST IN THIS,
YOU KNOW I DON'T KNOW WHY AN INJURED WORKER WOULD EVER SUE SOLELY TO GET
THEIR COMP CARRIERS MONEY BACK TYPICALLY THE INJURED WORKER WILL SUE BECAUSE THEY ARE
INTERESTED IN GAINING PAIN AND SUFFERING COMPENSATION FOR THEMSELVES BUT
I CAN'T IMAGINE THAT THERE WOULD BE A SITUATION WHY AN INJURED WORKER WOULD SAY
OUT OF THE GOODNESS OF MY HEART IRNL GOING FO TRY TO GET MY EMPLOYER OR
THEIR WORKERS KONL P CARRIERS MONEY BACK AND IF THAT'S SOMETHING THAT IS GOING
TO BE EVEN KOURNL THEN WE ARE CERTAINLY GOING AGAINST THE GOALS OF AICRA
BECAUSE NOW WE ARE GOING TO HAVE ADDITIONAL LIT GA IGS IN OUR COURTS AND THAT'S
WHAT WE ARE TRYING TO THAT'S WHAT AICRA IS TRYING TO AVOID SO THOSE ARE THE ISSUES
I DWANTS TODD AIR DRESS THANK YOU THANK YOU FOR YOUR CONSIDERATION.
CHIEF JUSTICE RABNER: THANK YOU. THANK YOU TO COUNSEL WE WILL TAKE THE
MATTER UNDER ADVISEMENT