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Warnig v. Atlantic County Special Services

October 27, 2003

DANA M. WARNIG, PETITIONER-RESPONDENT,
v.
ATLANTIC COUNTY SPECIAL SERVICES, RESPONDENT-RESPONDENT, AND PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, INTERVENOR-APPELLANT.



On appeal from Division of Workers' Compensation Claim, Petition No. 99-017221.

Before Judges King, Braithwaite and Lisa.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2003

The issue presented in this appeal is whether an insurer who pays benefits to its insured pursuant to the extended medical expense benefit ("Med-Pay") may be reimbursed for this payment in a workers' compensation proceeding pursuant to N.J.S.A. 39:6A-6. The Judge of Compensation held that the insured could not be reimbursed because the statute did not apply to Med-Pay benefits. We agree and affirm.

Petitioner, Dana Warnig, was injured in a motor vehicle accident on April 26, 1999, while working as a bus aide for respondent Atlantic County Special Services. At the time of the accident, she was a passenger on a bus owned and operated by respondent. On May 28, 1999, she filed a claim petition for workers' compensation benefits. At the time of the accident, she maintained a personal automobile insurance policy with intervenor Prudential Property & Casualty Insurance Company ("Prudential") that provided $250,000 in personal injury protection ("PIP") benefits, and $10,000 in Med-Pay benefits.

Petitioner received authorized medical treatment paid by respondent's workers' compensation carrier. Thereafter, the authorized treating physicians determined that petitioner had received maximum treatment. The workers' compensation carrier refused to pay for any further treatment. It concluded that the additional treatment was neither reasonable nor necessary. Petitioner sought and received chiropractic treatment on her own. Petitioner then sought PIP benefits from Prudential under her personal automobile policy. Because she was a passenger on a bus at the time of the accident, she did not qualify for PIP benefits. Thus, Prudential paid a total of $10,000 in chiropractic bills under the Med-Pay portion of petitioner's policy.

Prudential then moved to intervene in petitioner's pending workers' compensation action seeking reimbursement of the Med-Pay benefits paid on petitioner's behalf. Leave to intervene was granted on January 11, 2001. Respondent did not oppose the motion. Approximately eleven months later, respondent moved to dismiss Prudential's intervention in the workers' compensation proceeding. Following oral argument on March 21, 2002, the Judge of Compensation held that although Prudential had a right to intervene in the workers' compensation action, under the collateral source rule, N.J.S.A. 39:6A-6, Prudential was not entitled to reimbursement of the Med-Pay benefits. The underlying workers' compensation claim was settled on July 25, 2002. There was also a third-party claim that was settled with the tortfeasor.

Prudential argues that the compensation judge incorrectly held it was not entitled to recover Med-Pay benefits under the collateral source rule. Prudential contends that benefits paid under the Med-Pay portion of a personal automobile policy are no different from PIP benefits and should receive the same treatment under the collateral source rule, N.J.S.A. 39:6A-6, which entitles PIP carriers to seek reimbursement from workers' compensation carriers. Prudential contends that treating PIP and Med-Pay differently removes the incentive for the insurance carrier, here the insured party's personal automobile insurance carrier, to pay medical bills first and then seek reimbursement later. It urges that continuing to treat the two differently may cause the insurance carrier to alter its current policy, by slowing down the rate at which it pays medical bills or entirely abrogating its obligation to pay medical bills prior to seeking reimbursement. Prudential also claims that the compensation judge's ruling resulted in a windfall to petitioner and placed her in a better position than injured employees who are not eligible for Med-Pay.

The recovery of PIP benefits paid in a workers' compensation action is governed by the collateral source statute, which provides:

The benefits provided in sections 4 and 10 of P.L. 1972, c. 70 (C.39:6A-4 and 39:6A-10), the medical expense benefits provided in section 4 of P.L. 1998, c.21 (C.39:6A-3.1) and the benefits provided in section 45 of P.L. 2003, c.89 (C.39:6A-3.3) shall be payable as loss accrues, upon written notice of such loss and without regard to collateral sources, except that benefits, collectible under workers' compensation insurance, employees' temporary disability benefit statutes, medicare provided under federal law, and benefits, in fact collected, that are provided under federal law to active and retired military personnel shall be deducted from the benefits collectible under sections 4 and 10 of P.L.1972, c. 70 (C.39:6A-4 and 39:6A-10), the medical expense benefits provided in section 4 of P.L.1998, c.21 (C.39:6A-3.1)...

If an insurer has paid those benefits and the insured is entitled to, but has failed to apply for, workers' compensation benefits or employees' temporary disability benefits, the insurer may immediately apply to the provider of workers' compensation benefits or of employees' temporary disability benefits for a reimbursement of any benefits pursuant to sections 4 and 10 of P.L. 1972, c. 70 (C:39:6a-4 and 39:6A-10), medical expense benefits pursuant to section 4 of P.L. 1998, c. 21 (C:39:6A-3.1) pursuant to section 45 of P.L. 2003, c. 89 (c.39:6A-3.3).

[Ibid.]

In ruling that Prudential was not entitled to reimbursement, the compensation judge stated that the statute was clear in not covering Med-Pay benefits. She also found that petitioner did not obtain a double ...


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