Argued: February 27, 2013.
Approved for Publication October 16, 2013.
On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2009-24085.
John H. Geaney argued the cause for appellant ( Capehart & Scatchard, P.A., attorneys; Mr. Geaney and Ian G. Zolty, on the briefs).
John J. Jasieniecki argued the cause for respondent ( Green, Jasieniecki & Riordan, LLC, attorneys; Mr. Jasieniecki, of counsel and on the brief).
Before Judges GRALL, KOBLITZ and ACCURSO. The opinion of the court was delivered by ACCURSO, J.A.D.
[433 N.J.Super. 60] ACCURSO, J.A.D.
The question presented by this appeal is whether respondent AIG Casualty Company (AIG), which paid workers' compensation benefits to petitioner Kelly Greene, is entitled to a lien against her settlement with a third-party tortfeasor pursuant to Section 40 of the Workers' Compensation Act, N.J.S.A. 34:15-40, even though her injury was ultimately noncompensable. The workers' compensation judge determined that Section 40 is inapplicable to a
claim deemed not to be compensable. We disagree and reverse.
There are very few facts in the record. Petitioner was employed by AIG as an accountant analyst. She slipped in the lobby of the building where she worked, on a floor wet with rain, and sustained an injury to her knee. Petitioner immediately reported the accident to AIG. AIG did not own the building where petitioner worked but only leased a portion of the premises. It initially denied the claim and advised petitioner to submit any bills to her [433 N.J.Super. 61] health insurance carrier. Nevertheless, and for reasons unclear on the record, within days of that letter AIG authorized treatment without prejudice pursuant to N.J.S.A. 34:15-15 (Section 15).
Ten weeks after the accident, the subrogation agent for AIG's workers' compensation carrier wrote to petitioner asserting a lien against any financial recovery she might obtain from any third party. Petitioner subsequently filed a claim petition in the Division of Workers' Compensation against AIG and a third-party tort action. AIG filed an answer to the claim petition. In response to petitioner's assertion that her injury occurred in the course of her employment, AIG answered " UI," meaning the matter was " under investigation." AIG continued to pay medical and temporary disability benefits to petitioner pursuant to Section 15.
AIG subsequently filed an amended answer denying that petitioner's injury had occurred in the course of her employment and a motion to dismiss petitioner's claim petition. Petitioner opposed the motion and filed two additional motions of her own, one to compel AIG to provide additional medical treatment, and a second, months later, to bar any claim by AIG under Section 40.
In the motion made pursuant to Section 40, counsel expressed petitioner's willingness to concede that the claim was not compensable in exchange for a waiver of AIG's statutory subrogation rights as against her third-party settlement. Counsel explained that " [i]t is Petitioner's position that either the Workers' Compensation Claim Statute applies in its entirety or if the accident is not compensable, no credit under N.J.S.A. 34:15-40 is due. As such, ...