Flick v. Pma Ins. Co.

• Decision Date: 17 July 2007
• Docket Number: No. A-0202-06T1.,A-0202-06T1.
• Citation: 928 A.2d 54,394 N.J. Super. 605
• Parties: Robert FLICK, Plaintiff-Appellant, v. PMA INSURANCE COMPANY and Kathleen Reed, individually, Defendants-Respondents.
• Court: New Jersey Superior Court

928 A.2d 54

394 N.J. Super. 605

Robert FLICK, Plaintiff-Appellant, v. PMA INSURANCE COMPANY and Kathleen Reed, individually, Defendants-Respondents.

No. A-0202-06T1.

Superior Court of New Jersey, Appellate Division.

Argued March 28, 2007.

Telephonically Reargued June 11, 2007.

Decided July 17, 2007.

Steven L. Kessel, Red Bank, argued the cause for appellant (Drazin & Warshaw, attorneys; Mr. Kessel, on the brief).

Aurora N. Riccio, Morristown, argued the cause for respondents on March 28, 2007; Timothy P. Smith argued the cause for respondents on June 11, 2007 (Coughlin Duffy, attorneys; James P. Lisovicz, of counsel; Ms. Riccio and Mr. Lisovicz, on the briefs).

Levinson Axelrod, attorneys for amicus curiae New Jersey Advisory Counsel on Safety and Health (Richard Marcolus, of counsel and on the brief).

Before Judges STERN, COLLESTER and SABATINO.

The opinion of the court was delivered by

SABATINO, J.A.D.

Plaintiff Robert Flick, who presently has a disability claim pending before the Division of Workers' Compensation, ("the Division") appeals an August 9, 2006 order dismissing his related action in the Law Division. The Law Division case arose out of plaintiff's dissatisfaction with the failure of his employer's third-party administrator of compensation benefits, defendant PMA Insurance Co. ("PMA"), to comply in a timely manner with orders issued by the compensation judge authorizing certain medical procedures needed to treat plaintiff's work-related injuries. Plaintiff's lawsuit essentially contends that the enforcement mechanisms available in the Division are inadequate, and that he must resort to the jurisdiction of the Superior Court to ensure that he will obtain further medical care in a prompt and effective manner.

We affirm the dismissal of plaintiff's Superior Court complaint because plaintiff has failed to exhaust administrative remedies available to him before the judge of compensation, particularly the numerous forms of relief and sanctions set forth at N.J.S.A. 34:15-28.1 and at N.J.A.C. 12:235-3.14. We do so, however, without prejudice to plaintiff's ability to renew an effort to seek judicial relief if and when such administrative measures are exhausted.

Plaintiff currently is an employee of the County of Monmouth. Pursuant to contract, the medical treatment for the County's employees arising out of workers' compensation is monitored by a case manager from Meridian Health Systems, the County's benefits provider. The County also has retained defendant PMA as its third-party administrator for workers' compensation claims. Defendant Kathleen Reed is employed by PMA as the individual adjuster charged with managing plaintiff's claims.

On or about April 9, 1997, and again on or about August 13, 2002, plaintiff suffered personal injuries arising out of and in the course of his employment with the County. The injuries involve plaintiff's lower back. Plaintiff made claims for workers' compensation benefits from the County after each instance of injury.

Plaintiff's complaint, which he filed in the Law Division in February 2006, alleges that, as part of their handling of his claim for benefits, defendants "repeatedly ignored and/or rejected the recommendations of physicians that [PMA] had authorized to examine and treat the plaintiff as to the appropriate course of treatment to be rendered ...." Plaintiff asserts that, due to the alleged inaction of defendants, he was "required to obtain [o]rders compelling such benefits from the [Division of Workers' Compensation] on August 14, 2003, September 25, 2003, September 30, 2004 and December 22, 2005." Plaintiff asserts that defendants did not comply with the compensation judge's orders and ultimately "den[ied] and delay[ed] reasonable and necessary medical treatment and disability benefits ...."

Plaintiff's complaint further alleges that these actions of defendants were "taken in bad faith, without a justifiable basis in law or fact, and constitute an improper denial of insurance benefits to the plaintiff...." He contends that defendants' actions were "willful, wanton and done with malice." Consequently, the complaint asserts, "plaintiff sustained and experienced unnecessary pain and suffering in addition to what he otherwise would have experienced from his injuries and suffered from a worsening of his medical condition." Apart from such enhanced pain and suffering, plaintiff allegedly sustained financial harm, including the loss of temporary disability benefits and having to bear personal responsibility "for medical bills that should have been paid through the workers' compensation insurance coverage of his employer."

By way of relief, plaintiff's Law Division action sought compensatory damages, punitive damages, costs, interest, and counsel fees. Plaintiff also requested a trial by jury.

Shortly after filing an answer denying plaintiff's contentions of wrongdoing, defendants PMA and Reed moved to dismiss plaintiff's claims under R. 4:6-2(e) for failing to state a claim upon which relief may be granted. In essence, defendants argued that plaintiff's sole recourse lied in the Division pursuant to the exclusive remedy features of the Workers' Compensation Act. See N.J.S.A. 34:15-8.

After hearing oral argument on the motion, Judge Daniel Waldman issued a written opinion determining that plaintiff's claims were not cognizable in the Law Division and were inconsistent with the statutory and regulatory scheme underlying our system of workers' compensation. Judge Waldman consequently dismissed plaintiff's lawsuit in an order dated August 9, 2006. This appeal ensued.

Our State's workers' compensation law specifically provides that when an employee agrees to serve in employment protected by the Workers' Compensation Act ("the Act"), N.J.S.A. 34:15-1 to -128, the exclusive remedy of the worker is to pursue a claim for benefits under the Act. Charles Beseler Co. v. O'Gorman & Young, Inc., 188 N.J. 542, 546, 911 A.2d 47 (2006); Kristiansen v. Morgan, 153 N.J. 298, 312, 708 A.2d 1173 (1998). It is undisputed that plaintiff's injuries at issue here were sustained during the course of his employment with the County and are presumptively compensable under the Act.

The exclusivity provision of the Act, N.J.S.A. 34:15-8, states:

Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee's death shall bind the employee's personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer's business during bankruptcy or insolvency.

[N.J.S.A. 34:15-8 (emphasis added).]

Our courts have consistently enforced the Act's exclusivity provision, subject to the statute's narrow exception for intentional wrongs set forth at N.J.S.A. 34:15-8. See, e.g., Tomeo v. Thomas Whitesell Constr Co., 176 N.J. 366, 823 A.2d 769 (2003); Kibler v. Roxbury Bd. of Educ., 392 N.J.Super. 45, 919 A.2d 878 (App.Div. 2007); DeLane ex rel. DeLane v. City of Newark, 343 N.J.Super. 225, 778 A.2d 511 (App.Div.2001); Bryan v. Jeffers, 103 N.J.Super. 522, 248 A.2d 129 (App.Div. 1968), certif. denied, 53 N.J. 581, 252 A.2d 157 (1969).

The administrative agency specially created to adjudicate workers' compensation claims is the Division of Workers' Compensation within the Department of Labor and Workforce Development. See N.J.S.A. 34:15-49. The Division has "exclusive original jurisdiction of all claims for workers' compensation benefits" under the Act. Ibid. The judges of compensation within the Division are vested with extensive powers to decide contested issues of eligibility for coverage, the proven nature and extent of a worker's alleged disability, and the reasonable necessity of medical treatment required to address such work-related injuries. Hopler v. Hill City Coal & Lumber Co., 5 N.J. 466, 76 A.2d 17 (1950). Review of final decisions of the Division jurisdictionally is assigned to the Appellate Division, both by the Act and by general court rule. See N.J.S.A. 34:15-66; R. 2:2-3(a)(2).

The Legislature specifically envisioned that there may be situations in which an employer or its insurance carrier may "unreasonably or negligently delay[]" providing compensation to an injured worker entitled to compensation benefits. In particular, N.J.S.A. 34:15-28.1 prescribes that

[i]f a self-insured or uninsured employer or employer's insurance carrier, having actual knowledge of the occurrence of the injury, or having received notice thereof such that temporary disability compensation is due pursuant to [N.J.S.A.] 34:15-17, unreasonably or negligently delays or refuses to pay temporary disability compensation, or unreasonably or negligently delays denial of a claim, it shall be liable to the petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals. A delay of 30 days or more shall give rise to a rebuttable presumption of unreasonable and negligent conduct on the part of a self-insured or uninsured employer or an employer's insurance carrier.

[N.J.S.A. 34:15-28.1 (emphasis added).]

Apart from the twenty-five percent enhancement and counsel fee-shifting authorized under N.J.S.A. 34:15-28.1, the Division's administrative regulations set forth a panoply of enforcement mechanisms for judges of compensation. Those mechanisms are listed at N.J.A.C. 12:235-3.14. The regulation provides that numerous remedies may be imposed by the Division for an employer or other party's "unreasonable failure to comply with any written order of a Judge of Compensation or with any requirement of statute or regulation...." Id. Those measures include the power to:

1. Dismiss or grant the motion...