On appeal from the Division of Workers' Compensation.
Bischoff, Milmed and Francis. Milmed, J.A.D. (dissenting).
The question on this appeal is whether a PIP carrier can institute a workers' compensation proceeding as a means of enforcing its statutory right to deduct collectible workers' compensation benefits from PIP benefits. The question was answered in the affirmative in Solimano v. Consolidated Mut. Ins. Co. , 146 N.J. Super. 393 (Law Div.1977). However, in Wagner v. Transamerica Ins. Co. , 167 N.J. Super. 25 (App.Div.1979), certif. den. 81 N.J. 60 (1979), this court expressly declined to rule on the validity of Solimano and several related trial court decisions until squarely faced with the issue. The issue is now before us.
The facts can be briefly stated. On August 19, 1976 Wilma Pavuk was injured in an automobile accident. She filed a claim for PIP benefits but did not file a petition for workers' compensation benefits. The PIP benefits were paid by Aetna Casualty & Surety Company. Aetna then filed a workers' compensation petition "as PIP carrier for Wilma Pavuk." Respondent, Pavuk's employer, moved to dismiss the petition for lack of jurisdiction. At oral argument before the judge of compensation it was stipulated that respondent also denied that the accident was
work-related. The judge of compensation dismissed the petition, stating that the jurisdiction of the Division of Workers' Compensation was limited to the adjudication of claims filed by injured workers and did not embrace claims by PIP carriers. Aetna appeals.
The PIP carrier's right of deduction of collectible workers' compensation benefits arises from N.J.S.A. 39:6A-6, which provides:
The benefits provided by section 4a., b., c., d., and e. [ N.J.S.A. 39:6A-4, PIP benefits] and section 10 [ N.J.S.A. 39:6A-10, and additional PIP coverage] shall be payable as loss accrues, upon written notice of such loss and without regard to collateral sources, except that benefits collectible under workmen's compensation insurance, employees temporary disability benefit statutes and medicare provided under Federal law, shall be deducted from the benefits collectible under section 4a., b., c., d., and e. and section 10.
Under the statute, "benefits collectible" from workers' compensation and the other enumerated collateral sources "shall be deducted" from PIP benefits. According to Iavicoli, No Fault & Comparative Negligence in New Jersey (1973), § 13 at 44, as quoted in Wagner v. Transamerica Ins. Co., supra at 33:
However, in Solimano v. Consolidated Mut. Ins. Co., supra , Judge Morrison ruled that a PIP carrier could not make a unilateral decision that a claimant was entitled to collect workers' compensation benefits. Rather, Judge Morrison ruled, the full PIP benefits had to be paid when due and the carrier could enforce its statutory right of deduction by instituting a workers' compensation proceeding in its own name. This procedure was generally approved and applied also to employees temporary disability benefits in Frazier v. Liberty Mut. Ins. Co. , 150 N.J. Super. 123, 146 (Law Div.1977), and Toppi v. Prudential Ins. Co. of America , 153 N.J. Super. 445, 450-451 (Cty.D.Ct.1977).
In the present case Aetna followed the procedure set forth in Solimano. However, the judge of compensation dismissed Aetna's
petition. He declined to follow Solimano on the ground that it was in conflict with the decisions of the Supreme Court in Conway v. Mister Softee, Inc. , 51 N.J. 254 (1968), and ...