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Flick v. PMA Insurance Co.

July 17, 2007

ROBERT FLICK, PLAINTIFF-APPELLANT,
v.
PMA INSURANCE COMPANY AND KATHLEEN REED, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-738-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 28, 2007 and Telephonically reargued June 11, 2007

Before Judges Stern, Collester and Sabatino.

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 ...


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