Kleiner, J.c.c., Temporarily Assigned.
This matter is before this court on a motion and cross-motion for summary judgment requiring an analysis of the No Fault Insurance Law, N.J.S.A. 39:6A-1 et seq.
On January 9, 1976 plaintiff was involved in an automobile accident and sustained bodily injuries. A timely claim for medical expense benefits, N.J.S.A. 39:6A-4(a), and income continuation benefits, N.J.S.A. 39:6A-4(b), was submitted to defendant and said claims were promptly and totally paid.
In the case at bar, plaintiff alleges that on February 23, 1977 the medical effects of her aforementioned pre-existing injuries reappeared, requiring her to incur additional medical expenses and to again suffer a loss in wages.
She again forwarded her medical bills to defendant and made a claim for income continuation benefits.
Although the first two medical bills submitted were in fact paid, in April 1977 defendant informed plaintiff that in its opinion, based upon its investigation of the claim, the medical expenses incurred, were the result of an independent intervening accident and therefore it declined to pay any of the additional bills submitted or to pay any income continuation benefits.
Plaintiff seeks a summary judgment compelling the defendant to provide those benefits which it has declined to pay.
Defendant has filed a cross-motion for summary judgment, contending that, as a matter of law, even if this court declares that plaintiff's renewed medical expense claim is causally related to the initial automobile accident of January 9, 1976, that defendant is entitled as a matter of law to a credit against the lost wage claim for any temporary
disability benefits which plaintiff would have been entitled to receive under N.J.S.A. 43:21-25 et seq. insofar as temporary disability benefits are a collateral source. N.J.S.A. 39:6A-6.
It is undisputed that plaintiff has not filed a claim for temporary disability benefits. This salient fact raises the issue posed by the defendant's motion. Is there a conflict in the only two reported decisions in this State applicable to the deduction of collateral payments by an insured pursuant to N.J.S.A. 39:6A-6?
In Solimano v. Consolidated Mutual Ins. Co. , 146 N.J. Super. 393 (Law Div. 1977), the court held that an insurer may not unilaterally deduct prospective potential workers' compensation benefits from a PIP lost wage claim. In reaching this conclusion the court held:
[T]he No Fault Act was designed to get the bills paid and keep the injured insured, and those who must rely upon him or her for support, off the public assistance rolls. An implementation of Consolidated Mutual's position would require a judicial mandate to the least capable party (i.e. , the injured, oftentimes debilitated, insured) to exhaust all ...