KATHRYN ROBINSON VS. FIRST ENERGY CORPORATION (DEPARTMENT OF LABOR, DIVISION OF WORKERS' COMPENSATION) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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.
    3                              A-1953-15T3
    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
    7                                A-1953-15T3
    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
    9                              A-1953-15T3
    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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