Client: Freehold Regional Board of Education/PMA
Court: Workers’ Compensation
Trial Attorney: Christina M. Adinolfi Shea, Esq.
Brief Attorney: Michael P. McCaffrey, Esq.
**Results may vary depending on your particular facts and legal circumstances**
Petitioner filed a Motion seeking an Order that respondent be barred from asserting its Section 40 lien rights arising from the settlement in the third party action.
Petitioner’s Motion requested an Order that respondent not be entitled to recover its statutorily provided lien. More specifically, it requested no workers’ compensation lien be asserted on the $13,000.00 settlement proceeds in the third party action, and instead those proceeds be used to cover the costs and counsel fee incurred in the third party matter.
The Motion essentially argued that since petitioner’s attorney expended so much in costs in litigating the third party action, it would be unfair for respondent to recover the lien it is entitled to under N.J.S.A. 34:15-40.
Subsection (e) of N.J.S.A. 34:15-40 provides that for purposes of Section 40, “ ‘expenses of suit’ shall mean such expenses, but not in excess of $750, and ‘attorney’s fee’ shall mean such fee, but not in excess of 33 1/3 % of that part of the sum paid in release.”
Respondent asserted the language of the statute is clear that in terms of calculating the lien, a maximum of $750.00 is to be deducted for costs in the third party matter. The fact that the costs in the third party matter far exceed $750.00 has no bearing on respondent’s Section 40 lien rights and does not change the operation of N.J.S.A. 34:15-40.
Moreover, while petitioner’s Motion suggested she will be unfairly deprived of compensation if respondent recoups its Section 40 lien, the Motion ignored the fact that respondent already paid out $49,710.18 in medical and temporary benefits and $18,375.01 in permanency benefits pursuant to the original Order Approving Settlement.
Respondent maintained it is entitled to recover the full Section 40 lien amount of $7,916.67; there is no basis to set aside or compromise the lien.
The Judge of Compensation agreed and, in ruling for the respondent, he ordered the petitioner to send the respondent a check for the total remaining lien due.