Before Judges Stern, Braithwaite and Wecker.
The opinion of the court was delivered by: Braithwaite, J.A.D.
 Argued: October 7, 1998
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County.
The issue presented is whether a provider of medical services should be able to maintain an action at common law for unpaid services when a defendant has a claim pending in the Division of Workers' Compensation (the "Division") and asserts that the unpaid medical services were incurred in connection with injuries compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the "Act"). Relying on our opinion in West Jersey Health Systems v. Croneberger, 275 N.J. Super. 303 (App. Div. 1994), plaintiff medical provider asserts that it can maintain the suit and obtain a judgment, but the execution of that judgment should be stayed pending the outcome of the workers' compensation proceeding. Defendant contends that the Law Division does not have jurisdiction over the matter while he has a claim pending in the Division, citing Kinley Physical Therapy Services v. Kramer, 256 N.J. Super. 355 (Law Div. 1992). The Law Division Judge followed Kinley and dismissed plaintiff's complaint without prejudice. We agree that the Law Division lacked jurisdiction while defendant's compensation claim was pending, but disagree that plaintiff's complaint should have been dismissed without prejudice. Plaintiff's complaint and all other papers filed in the Law Division should have been transferred to the Division pursuant to Rule 1:13-4. We therefore reverse the dismissal of plaintiff's complaint and remand this matter to the Law Division for an order transferring this matter to the Division.
The facts necessary to resolve this appeal are not in dispute. Defendant received medical treatment from plaintiff on various dates between July 2, 1993, and March 6, 1996. Plaintiff billed defendant $5,200 for these services, but defendant has not paid the bill. On June 9, 1994, defendant filed two claim petitions in the Division against two prior employers. Defendant sought benefits for a "disability to kidneys, diabetes, lungs and internal disability" claiming that he was exposed to harmful chemicals and metals during his employment.
Because of defendant's failure to pay plaintiff's bill, it commenced this action in the Law Division, Special Civil Part, on January 23, 1997. Defendant failed to file an answer and a default judgment was entered in favor of plaintiff in the amount of $5,200. On April 22, 1997, defendant moved to vacate the default judgment and to dismiss plaintiff's complaint without prejudice. Plaintiff opposed the motion arguing that the default judgment should not be vacated because defendant failed to demonstrate excusable neglect or that he had a meritorious defense. Plaintiff also argued that Kinley should not be followed because it was overruled by Croneberger. Relying on Kinley, the motion Judge granted defendant's motion, and dismissed plaintiff's complaint without prejudice.
Plaintiff then filed this appeal. Defendant moved to dismiss the appeal asserting that it was interlocutory because the order dismissing plaintiff's complaint without prejudice was not a final one. We denied defendant's motion.
The Act is a form of remedial legislation designed to "relieve the injured employee of the burden of paying for his own medical care and to replace his lost wages." 38 New Jersey Practice § 1.1, at 1 (John L. Gelman) (2d Ed. 1994). The Division has original and exclusive jurisdiction over claims for workers' compensation benefits. N.J.S.A. 34:15-49. Additionally, the Act's "election surrender" provision, N.J.S.A. 34:15-8, abrogates the employee's and employer's common law rights against each other with respect to injuries covered by the Act.
The Act requires employers to provide medical treatment to injured employees. N.J.S.A. 34:15-15. The "duty to provide adequate and proper medical treatment is . . . absolute." Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). If an employer refuses to provide medical treatment, the employee may obtain treatment on his own. N.J.S.A. 34:15-15. The ability to independently seek treatment is conditioned upon the employee making a demand on the employer to provide such treatment. Ibid. Demand is not required in emergencies, when the employer has knowledge of the injury and neglects to act, or when "the circumstances are so peculiar" that the medical expenditures incurred by the employee are justified in the opinion of the Division. Ibid. In these circumstances the employer is obligated to pay the costs of the employee's treatment. Ibid. The employer, however, is only responsible for the fees and charges that are "reasonable and based upon the usual fees and charges which prevail in the same community for similar physicians', surgeons' and hospital services." Ibid. An employee seeking payment of medical bills for injuries covered by the Act, must seek relief in the Division "and a suit at common law cannot be maintained." Rothfuss v. Bakers Mut. Insurance Co., 107 N.J. Super. 189, 193 (App. Div. 1969); N.J.S.A. 34:15-8.
As noted, supra, the Act is a form of remedial legislation. As a result, when courts interpret the Act it "should be given liberal construction [in favor of the employee] in order that its beneficent purposes may be accomplished." Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974).
The ultimate purpose of the [Act] is to provide a dependable minimum of compensation to insure security from want during a period of disability. It is the understanding of most workers that the benefits of the [Act] apply to accidents arising out of and in the course of their employment. Consistent with its humanitarian ideals, our [Act] has always been liberally ...