On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2004-29233.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 5, 2009
Before Judges Axelrad, Fisher and Espinosa.
This appeal presents a conflict of laws issue regarding whether petitioner's recovery of uninsured motorist (UM) benefits from his personal Pennsylvania automobile insurance policy for injuries sustained in a motor vehicle accident in the course of his employment with the State of New Jersey (State) should be subject to a workers' compensation lien pursuant to New Jersey law. The workers' compensation judge ruled that New Jersey law should apply, giving petitioner's employer a right of subrogation against the proceeds. We reverse and remand for further proceedings.
On August 30, 2004, petitioner Terrence Johnson, a New Jersey Department of Corrections' employee, was injured in the course of his employment in Ewing Township, New Jersey. Petitioner, who was driving a state-owned work vehicle, was struck by an uninsured motorist. At the time, petitioner was a Pennsylvania resident and owned a personal vehicle covered by a Pennsylvania automobile policy with State Farm Insurance Company.
The State provided petitioner with workers' compensation benefits for his injuries but advised it would not respond to his UM claim because the State is exempt from the provisions of the Security and Responsibility Act of Title 39. Petitioner then filed a claim with State Farm seeking UM benefits for the accident. By letter of October 28, 2005, the State wrote to petitioner's attorney, stating, "We are advised that your office is handling a THIRD PARTY action" for petitioner, and asserting a workers' compensation lien of $26,769.99 for temporary compensation and medicals. See Midland Ins. Co. v. Colatrella, 102 N.J. 612 (1986) (holding that UM proceeds constitute a third party recovery under N.J.S.A. 34:15-40, upon which a workers' compensation lien attaches). Petitioner's attorney responded that there was no third-party claim, just the UM claim against petitioner's own policy, and under the State Farm policy and Pennsylvania law, there is no right to assert a workers' compensation lien in a UM claim.*fn1
On February 8, 2007, State Farm's representative sent a letter to petitioner's attorney regarding petitioner's UM claim, stating in pertinent part:
Your correspondence also indicates a workers' compensation lien of $12,628.20. As I'm sure you are aware, the carrier has no right to assert a lien in a UM claim; however, you should also be aware that your client has a right to prove, plead and recover the amount of their payment. In this case, my file reflects a total WC payment of approximately $27,000, which has already been factored into my evaluation of the claim. . . .
With regard to your demand for the policy limits, at present I do not think the information in my file warrants that type of value; however, I am certainly willing to consider any new information that is available. . . .
Incidentally, since it appears we will not be able to settle the claim for my initial offer amount of $52,000, I will be forwarding that amount to you under separate cover in the near future. It is State Farm's procedure to do this as we believe that is the minimum amount your client will be entitled to receive. The claim will of course remain open and we are not asking Mr. Johnson to sign any sort of Release. [Emphasis added.]
Petitioner's counsel forwarded this letter to the State representative, further advising that State Farm had forwarded the amount of $52,000 to petitioner to avoid any claim of bad faith under the policy and that the matter would proceed to arbitration.
Petitioner's attorney and the State continued to dispute whether the State was entitled to subrogation of its workers' compensation lien. In September 2007, the State filed a motion in the New Jersey workers' compensation court to set the lien, arguing that petitioner was bound by New Jersey workers' compensation law. Petitioner opposed the motion on the basis that under a conflicts of law analysis, Pennsylvania law should control. By order of January 29, 2008, the judge of compensation set the amount of the lien at $17,646.67 pursuant to N.J.S.A. 34:15-40. The parties thereafter reached a settlement as to petitioner's permanency, which was confirmed by court order of August 7, 2008.*fn2
By written opinion of November 25, 2008, the judge found that petitioner was required to reimburse the State for the lien, finding that once petitioner elected to receive compensation benefits from New Jersey pursuant to its compensation laws, he triggered the statutory subrogation rights of the compensation carrier. The judge found Midland, supra, to be decisive, concluding that denying the State's right to subrogation would result ...