KATHRYN ROBINSON VS. FIRST ENERGY CORPORATION (DEPARTMENT OF LABOR, DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1953-15T3
KATHRYN ROBINSON,
Petitioner-Respondent,
v.
FIRST ENERGY CORPORATION,
Respondent-Appellant.
__________________________
Argued February 7, 2018 - Decided August 2, 2018
Before Judges Alvarez, Nugent and Currier.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2004-30601.
Louis M. Masucci, Jr., argued the cause for
appellant (Weiner Law Group, LLP, attorneys;
Louis M. Masucci, Jr., on the brief).
Danielle S. Chandonnet argued the cause for
respondent (Shebell & Shebell, LLC, attorneys;
Danielle S. Chandonnet, on the brief).
PER CURIAM
This workers' compensation case comes before us a second
time, previously on petitioner Kathryn Robinson's appeal, now on
respondent First Energy Corporation's appeal.1 First Energy
appeals from a December 10, 2015 order that denied its motion to
recover disability and medical benefits it had paid on petitioner's
behalf. A Judge of Compensation ("JOC") denied First Energy's
motion for two reasons: first, First Energy did not, but should
have, filed an appeal or cross-appeal when petitioner appealed the
final order of dismissal; second, requiring petitioner to repay
the benefits would be inequitable and unjust. We agree on both
grounds and dismiss this appeal as untimely.
Petitioner had been employed by First Energy for thirteen
years when she suffered the emotional injury for which she sought
workers' compensation benefits. The triggering event was her
encounter with two other employees as she drove onto First Energy's
employee parking lot to begin her work day. The parking lot had
two entry locations, but plaintiff routinely disregarded them and
entered through a rear gate that company drivers used to exit the
lot. As petitioner drove in, she encountered two meter readers
sitting in two pickup trucks, stopped side-by-side. The meter
1
The pleadings filed in the Department of Labor, Division of
Workers' Compensation, named the respondent there "First Energy
Corporation." In its answer to the claim petition, First Energy
Corporation entered nothing in the section of the form answer
entitled "Correct Name of Respondent If Incorrect." For these
reasons, we use the name, "First Energy Corporation," even though
on appeal appellant has captioned its brief, "Jersey Central Power
and Light Company I/P/A First Energy Corporation."
2 A-1953-15T3
readers were talking, their pickup trucks facing petitioner's car
and blocking its path of travel.
The ensuing events, including the reasons petitioner believed
the meter readers presented a danger to her and the extent of her
emotional reaction, are described in our opinion affirming the
dismissal of petitioner's claim petition, Robinson v. First Energy
and Second Injury Fund, No. A-0986-11 (App. Div. Sept. 11, 2014)
(slip op. at 3-5), and we need not repeat them. We need only
point out First Energy disputed a compensable accident had
occurred.
Shortly after petitioner filed an Employee's Claim Petition,
she filed a motion for temporary disability and medical benefits.
A JOC held a hearing and found a compensable event had occurred.
The JOC ordered First Energy to pay temporary disability benefits
and provide petitioner medical care. First Energy filed a motion
for leave to appeal and stay the JOC's order. The Appellate
Division denied the motion.
First Energy began to pay the temporary disability and medical
benefits. During the ensuing years, petitioner impleaded the
Second Injury Fund (the "Fund"), and First Energy successfully
moved to convert the temporary disability benefits to permanent
disability benefits.
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Six years after the first JOC's decision concerning
disability and medical benefits, a second JOC conducted a hearing
to determine the extent, if any, of petitioner's permanent
injuries. The hearing was necessary because the Fund had not been
a party at the time of the first hearing concerning disability and
medical benefits. Contrary to the first JOC's determination, the
second JOC determined petitioner had not met with a compensable
accident. The second JOC also decided he had "no authority to
review [the first JOC's] decision as an appellate court," and
therefore did "not disturb [the] order," which was "no longer in
effect due to the ending of active [medical] treatment and
temporary disability payments." The JOC entered a final Order of
Dismissal.
Petitioner appealed from the final order. First Energy did
not. Instead, First Energy filed a Law Division complaint against
petitioner to recover $249,259.40 it had paid on behalf of
petitioner in the Division of Workers' Compensation. At the same
time, First Energy filed a motion to proceed summarily to enter
judgment against petitioner. Petitioner cross-moved to stay the
Law Division proceedings pending her appeal. The Law Division
judge denied both motions. The judge concluded that absent a
JOC's finding petitioner had been unjustly enriched, the Superior
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Court had no jurisdiction to grant a motion to proceed summarily
and enter a judgment.
First Energy next filed a motion with the Appellate Division
seeking a limited remand. The Appellate Division denied the
motion. After the Appellate Division affirmed the final order
dismissing petitioner's claim petition, First Energy filed a
motion in the Division of Workers' Compensation seeking to reopen
the case to obtain reimbursement of the benefits it had paid.
A third JOC denied the motion. The third JOC noted the first
JOC's order concerning temporary disability and medical benefits
was interlocutory. Thus, in 2005, when the Appellate Division so
held, First Energy preserved its right to appeal the order
concerning payment of temporary disability and medical benefits.
In addition, the workers' compensation order converting temporary
to permanent disability benefits "specifically preserved [First
Energy's] right to appeal [the] order at the conclusion of the
case by settlement or judgment." First Energy should have filed
its appeal once a final order was entered dismissing petitioner's
claim.
Notwithstanding his decision that First Energy's failure to
timely appeal could be fatal, the third JOC addressed First
Energy's unjust enrichment claim. He concluded it would be
inequitable and unjust to order petitioner to repay the benefits.
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The third JOC explained, "the Fund never is involved with
temporary or medical benefits. Their sole function is in
situations where petitioner is totally disabled based upon a
pre[-]existing condition in conjunction with the last compensable
accident." The JOC explained that in such situations the Fund
"pay[s] permanent benefits after a period of time to relieve the
respondent for paying all benefits for the remainder of
petitioner's life." For that reason, and as evidenced by the
second JOC's repeated reference to permanency in his opinion, the
second JOC was required to revisit compensability solely as it
affected his decision as to permanency.
The third JOC further noted the first and second JOCs gave
contrary opinions concerning petitioner's credibility. Had First
Energy timely appealed the first JOC's decision, case law and the
appropriate standard of review would have required deference to
his favorable credibility determination. The third JOC concluded
petitioner was prejudiced by First Energy's failure to appeal from
the final workers' compensation order, thereby depriving the
Appellate Division of the opportunity to consider "all components
of the claim together in an equitable sense."
Lastly, the third JOC noted that to prevail on a claim of
unjust enrichment, First Energy was required to show petitioner's
retention of the benefits would be unjust. Emphasizing the
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remedial nature and broad application of the workers' compensation
system, the JOC found it would be unjust to require repayment of
$250,000 by a woman suffering from a very serious medical
condition, "on Social Security Disability, indicative of her
inability to work," who did "absolutely nothing wrong," and who
was awarded benefits "pursuant to a court order after a full
hearing" before "[a]n experienced [JOC]."
On appeal, First Energy acknowledges the Workers'
Compensation Act, N.J.S.A. 34:15-1 to -146, does not include a
provision that authorizes a JOC to order repayment of temporary
disability and medical benefits, but argues petitioner will be
unjustly enriched if she is not required to repay the benefits she
received. First Energy also contends the third JOC misconstrued
the underlying facts and misapplied the law.
Generally, "[a] person who has conferred a benefit upon
another in compliance with a judgment, or whose property has been
taken thereunder, is entitled to restitution if the judgment is
reversed or set aside, unless restitution would be inequitable."
Bernoskie v. Zarinsky, 394 N.J. Super. 421, 425 (App. Div. 2007)
(quoting Restatement (First) of Restitution §74 (Am. Law Inst.
1937)). Here, the order upon which First Energy bases its claim
for unjust enrichment has not been reversed or set aside. The
second JOC expressly declined to do so. Moreover, we do not
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disagree with the third JOC's decision that restitution under the
circumstances of this case would be inequitable.
Even if restitution were not inequitable, however, First
Energy's appeal must be dismissed as untimely. Appeals from final
judgments of the Division of Workers' Compensation must be taken
within forty-five days of their entry, R. 2:4-1(a), subject to
certain exceptions not applicable to this case. A decision is
"considered final if it disposes of all issues as to all parties."
Silviera-Francisco v. Bd. of Educ., 224 N.J. 126, 136 (2016)
(citing Petersen v. Falzarano, 6 N.J. 447, 452-53 (1951); In re
Donohue, 329 N.J. Super. 488, 494 (App. Div. 2000)). Here, the
second JOC's decision and order of dismissal disposed of all issues
as to all parties.
A respondent may cross-appeal as of right. R. 2:3-4. "[T]his
rule by its 'as of right' language leaves no doubt that once the
judgment is appealed from, 'the entire assemblage of issues should
be and is available for adjudication.'" Pressler & Verniero,
Current N.J. Court Rules, cmt. 1.1 on R. 2:3-4 (2018) (quoting
Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 388
(1963)). A respondent may thus "cross-appeal the whole or any
part of a judgment against any other party to the cause." Fortugno
Realty Co., 39 N.J. at 388. "Fragmented and possible inconsistent
results are thus avoided. In this manner only may substantial
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justice be done, especially where the issues are manifold and the
parties numerous." Ibid.In the case before us, when petitioner appealed from the
second JOC's final order of dismissal, First Energy should have
cross-appealed to challenge the first JOC's order requiring
payment of temporary disability and medical benefits. This is
particularly so considering the second JOC refused to vacate the
first JOC's decision and order. "[I]t is a well-established
principle in this State that when the time for taking an appeal
has run the parties to the judgment have a vested right therein
which cannot subsequently be taken from them." In re Hill, 241
N.J. Super. 367, 371 (App. Div. 1990) (alteration in original)
(quoting In re Pfizer, 6 N.J. 233, 239 (1951)). "Where the appeal
is untimely, the Appellate Division has no jurisdiction to decide
the merits of the appeal." Id. at 372 (citing Alberti v. Civil
Serv. Comm'n, 41 N.J. 147, 154 (1963)).
As did the third JOC, we conclude First Energy should have
filed an appeal or cross-appeal within forty-five days of the
entry of the final order of dismissal in the Division of Workers'
Compensation. Because it failed to do so, "the entire assemblage
of issues" became final once petitioner's appeal was decided. See
Fortugno, 39 N.J. Super. at 388. First Energy cannot avoid the
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finality of the case by engaging in post-appeal motion practice
in the trial court or the Division of Workers' Compensation.
Appeal dismissed.
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