Letter,Correspondence: Muratov Shatlyk Vs Castellana Jack

On April 01, 2019 a Letter,Correspondence was filed involving a dispute between Shatlyk Muratov, and Ean Holding Llc, Jack Castellana, for Auto Negligence-Personal Injury (Verbal Threshold) in the District Court of Morris County.

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Law Offices of
JAMES H. ROHLFING
James H. Rohlfing Victoria M. Gomez
Steven J. Currenti 2 Paulisa D. Vargas
Michael A. Mourtzanakis 1 Rachel W. Console
Bernard J. Tkaczynski 1 Kenneth A. Funkhouser
Florence A. Lamb 2
Cynthia J. Birkitt 1
Mailing Address: Gina M. Kourtesis
Rebecca C. Molnar
D. Scott Conchar 1 P.O. Box 2903 Caitlin E. White
Carol A. Dietrich 2 Gaecia A. Yaw
Jaunice M. Canning 1 Hartford, CT 06104-2903 Kaitlin M. Reilly
Gary N. Coutu 1 (973) 631-7300 Amanda B. Haasz
Kevin D. London 1 Jeffrey F. Talbot
Lisa Marie DeRogatis 1 Fax (855) 857-9822 Amanda J. Hickey
Thomas F. Zborowski 1 Kelsey A. Krier
Rosalind Jackie Raymond 2 Raymond M. Long IV
Nancy B. Appel 1
Physical Address: Eddie S. Freeman III
Eileen M. Ryan 2 445 South Street Samuel P. Reisen
Erica B. Sherman Morristown, NJ 07960 Renee C. Rivas
Patrick S. Brennan Misbahul Fatima
Robert C. Kane, Jr. Andrew I. Tealer
Suzanne D. Montgomery Attorney Direct: 973-631-7342
Christina P. Fisher Attorney Email: pdahl2@travelers.com 1. Certified by the Supreme Court
Terence J. Lynch of N.J .as a Civil Trial Attorney
Peter J. Dahl File No.: 2021073769-MO-PJD
2. Certified by the Supreme Court
of N.J .as a Workers’ Compensation
Law Attorney

The Honorable Peter A. Bogaard, J.S.C.
Superior Court of NJ
Morris County Courthouse
Washington and Court Sts.
Morristown, NJ 07960

Re: Muratov v. Castellana
Docket No.: MRS-L-700-19

Dear Judge Bogaard:

This office represents The Charter Oak Fire Insurance Company (“Charter Oak”) in the

above captioned matter. Oral argument is currently scheduled for August 24, 2021 on Plaintiff

Shatlyk Muratov’s Order to Show Cause. On June 17, 2021, Charter Oak filed an Answer and

opposition to the Order to Show Cause.

Charter Oak’s opposition included a brief statement outlining why the Kuhnel v. CAN

Insurance 322 N.J. Super 568 (App. Div. 1999) matter was not applicable to this case. Recently,

the New Jersey Appellate Division decided the matter of Panckeri v. Allentown Police Dep't, A-
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2015-19, 2021 WL 795251 (N.J. Super. Ct. App. Div. Mar. 2, 2021). A copy of that decision is

included herein as it is unpublished.

Panckeri is directly on point in this case. In Panckeri, a petitioner argued that attorney and

other fees paid on his behalf were not for his benefit and enjoyment and did not need to be

reimbursed, citing to Kuhnel. The Appellate court disagreed:

In Kuhnel, we addressed only the respondent employer's share of fees and
costs. Ibid. Notably, we held expenses that “benefitted the employee” are
included in the employer's Section 40 lien. Id. at 573. Although we were not
asked to consider the petitioner's counsel fees and costs, we noted that the
insurance carrier's Section 40 lien “included, among other things, the portions
of Kuhnel's counsel fees and other fees and costs which were assessed against
[the employer] by the compensation court.” Id. at 574. Moreover, we
decided Kuhnel eight years before Section 40 was amended. As the
compensation judge correctly recognized, the 2007 amendment made no
mention of the petitioner's portion of attorneys’ fees and
costs. See L. 2007, c. 23, § 1.

Panckeri v. Allentown Police Dep't, A-2015-19, 2021 WL 795251, at *4 (N.J. Super. Ct. App.
Div. Mar. 2, 2021).

As Panckeri is directly on point and was recently decided, it is holding is applicable here
and Charter Oak respectfully requests that it be reimbursed in accordance with the dictates of
Panckeri.

Respectfully submitted,

Peter J. Dahl

PJD/km
cc: Sander Budanitsky, Esq.
Laura Ortiz//E7H5416
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Panckeri v. Allentown Police Department, Not Reported in Atl. Rptr. (2021)
2021 WL 795251

Panckeri fileda claim for workers’ compensation benefits
2021 WL 795251
against the APD. On January 21, 2014, a judge of
Only the Westlaw citation is currently available.
compensation approved an initial settlement of thirty-three
UNPUBLISHED OPINION. CHECK and one-third percent permanent disability “[f]or residuals of
COURT RULES BEFORE CITING. rupture of the left [A]chilles tendon with surgical repair.” The
judge allowed $1524 for Panckeri's attorneys’ fees and costs
Superior Court of New Jersey, Appellate Division. on the compensation case.

Daniel PANCKERI, Petitioner-Appellant,
After the condition of his foot worsened, Panckeri moved
v. to modify the award. See N.J.S.A. 34:15-27. On March
ALLENTOWN POLICE DEPARTMENT, 21, 2017, another judge of compensation approved the
Respondent-Respondent. settlement, increasing Panckeri's permanent disability to forty
percent. The judge allowed $844 for Panckeri's attorneys’ fees
DOCKET NO. A-2015-19 and costs on the “reopened” compensation matter, for a total
| of $2368 in attorneys’ fees and costs for both compensation
Argued February 10, 2021 cases.
|
Decided March 2, 2021 In the meantime, Panckeri filed a complaint in the Law
Division, alleging his injuries were caused by the driver and
On appeal from the Department of Labor and Workforce
owner of the rolling vehicle. Panckeri settled his claims with
Development, Division of Workers’ Compensation, Claim
both defendants for $99,000, which was reduced by $5000
Petition No. 2012-10378.
for his ex-wife's per quod claim. The third-party settlement
Attorneys and Law Firms was reduced by $30,693.39 in attorneys’ fees and $1,919.82
in expenses for litigation of the third-party action.
Patrick L. Cimino argued the cause for appellant (The Tashjy
Law Firm, LLC, attorneys; Patrick L. Cimino, of counsel and
Pursuant to N.J.S.A. 34:15-40 (Section 40), of the
on the briefs).
Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142,
Kenneth W. Chamlin argued the cause for respondent the APD reserved its right to assert a lien on both
(Chamlin Uliano & Walsh, attorneys; Kenneth W. Chamlin, compensation awards against Panckeri's recovery from third-
of counsel and on the brief; Andrew T. Walsh, on the brief). party tortfeasors. Section 40 provides, in relevant part:
Before Judges Whipple, Rose and Firko. (b) If the sum recovered by the employee or his dependents
from the third person or his insurance carrier is equivalent
Opinion
to or greater than the liabilityof the employer or his
PER CURIAM insurance carrierunder this statute,the employer or his
insurance carrier shall be released from such liability and
*1 Petitioner Daniel Panckeri appeals from a December shall be entitled to be reimbursed, as hereinafter provided,
3, 2019 order of the Division of Workers’ Compensation for the medical expenses incurred and compensation
(Division), enforcing a statutory lien in favor of respondent payments theretofore paid to the injured employee or his
Allentown Police Department (APD) against the proceeds of dependents less employee's expenses of suit and attorney's
his settlement with third-party tortfeasors. We affirm. fee as hereinafter defined.

The facts are undisputed. On April 15, 2012, Panckeri was ....
working as a police officerfor the APD. While rendering
(e) As used in this section, “expenses of suit” shall mean
assistance at the scene of a motor vehicle accident, Panckeri
such expenses, but not in excess of $750 and “attorney's
attempted to stop one of the cars that was rolling into
fee” shall mean such fee, but not in excess of 33 ⅓ %
oncoming traffic.Panckeri's leftfoot was injured in the
of that part of the sum paid in release or in judgment
process.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
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Panckeri v. Allentown Police Department, Not Reported in Atl. Rptr. (2021)
2021 WL 795251

to the injured employee or his dependents by such third statute ispassed as a whole and not in parts or sections.”
person or his insurance carrier to which the employer or his Citing our decision in Wager v. Burlington Elevators, Inc.,
insurance carrier shall be entitled in reimbursement under 116 N.J. Super. 390, 395 (App. Div. 1971), the judge found
the provisions of this section, but on all sums in excess the legislative intent underscoring Section 40 balanced the
thereof, this percentage shall not be binding. employer's duty to compensate its injured employee with its
“right to reimbursement for the compensation so paid by [it]
*2 The APD asserted a total lien of $53,717.28 for payments out of any damages which may be recovered from the third-
made to Panckeri as follows: party tort-feasor liable for the employee's injuries ....” Ibid.
Accordingly, the judge noted the employee was not entitled
• $16,547.13 in temporary disability benefits; “to keep the double recovery.” Id. at 396.

• $16,287.05 in medical benefits;
The compensation judge further canvassed New Jersey case
• $16,560.01 in permanency benefits for the January 21, law analyzing the more than century-old legislative history of
2014 settlement; and the Act and interpreting Section 40. The judge emphasized
the employer's subrogation and reimbursement rights under
• $4,323.09 in permanency benefits for the March 21, 2017 Section 40 is “statutorilycreated and generally attaches
settlement. to ‘any sum’ recovered by the injured worker from a
third[ ]party, without regard to such equitable considerations
[ (Emphasis added).]
as whether the worker has been fully compensated.” Lambert
v. Travelers Indem. Co. of Am., 447 N.J. Super. 61, 73 (App.
Pertinent to this appeal, the APD's $20,883.10 combined
lien against Panckeri's permanency benefits reflected his Div. 2016) (citing Primus v. Alfred Sanzari Enters., 372
gross compensation award. Panckeri disagreed, contending N.J. Super. 392, 400 (App. Div. 2004)). The judge elaborated:
the APD's lien erroneously included $2368 in attorneys’ fees
and reimbursement costs for litigation of both compensation
claims. Accordingly, Panckeri moved before the Division of *3 While P[anckeri] argues that costs
Workers’ Compensation to determine APD's lien pursuant to deducted from the award are not a
Section 40. benefit to [him], as the term benefit is
interpreted by case law, the common-
Following argument, the judge of compensation, who had sense meaning of benefit, both for
not approved either settlement, reserved decision. Thereafter, the purposes of [Section] 40 and
the judge issued a comprehensive written decision, rejecting reading [Section] 40 in relation to
Panckeri's contentions. The judge cogently recounted the the entirety of the ...Act, is ...to
undisputed facts, noting the parties agreed Section 40 was read “benefit” as synonymous with
triggered by those facts, but the sole issue presented was the “overall recovery.” Furthermore,
“whether the [c]ourt must deduct P[anckeri]’s share of fees
[under] N.J.S.A. 34:15-40(e) the
and costs from the subrogation calculation.” In that regard,
Legislature has expressly defined
Panckeri argued his “share of fees and costs is not a
those costs and fees ...which may
compensation or medical benefit[ ], and thus does not fit the
be deducted ... up to $750. The
statutory definition of recoverable monies.” Conversely, the
Legislature set this limit even though
APD contended “the statutory construction, as well as the
expenses of suit in virtually every
longstanding practice in calculating [Section] 40 subrogation
claim in which there is both a
rights, require[d] the [c]ourt include the gross award, before
[w]orkers’ [c]ompensation action and
[1]
fees and costs.” a related civil action will exceed
$750. So, again, the common-sense
Recognizing resolution of the issue turned on the statutory
reading of N.J.S.A. 34:15-40(e)
interpretation of Section 40, the judge reasoned “construction
suggests P[anckeri's] interpretation
of the parts of any statute must be [made] with reference
to the leading idea or purpose of the whole statute,as a

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2
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Panckeri v. Allentown Police Department, Not Reported in Atl. Rptr. (2021)
2021 WL 795251

is inconsistent with the intent and FEES AND COSTS BECAUSE THE
purpose of the statute. LEGISLATURE INTENDED TO
PREVENT DOUBLE RECOVERY.

Noting “the $750 exemption” under subsection (e) expressly
“applies to costs in the civil action,” while the Act is “silent”To support his argument, Panckeri asserts attorneys’ fees and
with regard to costs incurred in the workers’ compensation costs were not made for his “benefit or enjoyment” and, as
matter, the judge declined to “read additional deductions into such, they are not “compensation payments” and “cannot be
the plain language of the statute.” Citing our Supreme Court included in the category of benefits constituting a double
precedent, the judge recognized the “caveat against drawing recovery” under Section 40. Panckeri maintains the judge
inferences from legislative acquiescence.” Garfield Tr. Co. misconstrued the plain meaning of the statute, and that our
v. Dir., Div. of Taxation, 102 N.J. 420, 431 (1986). But the
decision in Kuhnel v. CNA Insurance Cos., 322 N.J. Super
judge also astutely observed the Court's pronouncement that
568 (App. Div. 1999), supports his position.
“[t]he Legislature ‘knows how to express its disagreement
with case law by amending a statute if it believes a court has
We have reviewed de novo the sole legal question raised
misconstrued its intent.’ ” State v. Galicia, 210 N.J. 364, on this appeal in view of Panckeri's contentions and
the governing law. See Renner v. AT&T, 218 N.J. 435,
382 (2012) (quoting Johnson v. Scaccetti, 192 N.J. 256,
448 (2014); see also Sexton v. Cty. of Cumberland/
277 (2007)).
Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div.
2009) (recognizing we owe “no particular deference to the
Finally, the compensation judge cited the Division's
judge of compensation's interpretation of the law”). We
longstanding practice, dating back to “the introduction of
affirm substantially for the reasons articulated by Judge
the reimbursement requirement.” That practice based the
of Compensation Christopher B. Leitner,in his thoughtful
employer's Section 40 rights “on the entirety of the recover[y],
and thorough written decision. We add only the following
without regard to the fees and costs encountered in the
comments.
[w]orkers’ [c]ompensation award.” In that context, the judge
observed the Act was most recently amended in 2007, when
*4 Panckeri's reliance on Kuhnel is misplaced. In Kuhnel,
the Legislature specifically “examined exemptible fees and
we considered among other things, the retroactivityof a
costs,” choosing “only to increase the deductible amount,”
Chancery Division judgment, declaring a Section 40 lien
and “not to include any new interpretation.”Accordingly,
“shall not include a respondent's portion of a petitioner's
the judge concluded that “long acquiescence on the part of
attorney and expert fees, an employer or insurer's expenses
the Legislature” implied the Division's practice of including
for a defense medical examination, or rehabilitative nursing
attorneys’ fees and costs for the compensation matter did not
services unless such nursing services ‘primarily benefitted
misconstrue the Legislature's intent.
the employee and were reasonably necessary to the injured
Panckeri moved for reconsideration, primarily arguing the employee's recovery.’ ” 322 N.J. Super. at 573. The parties
judge mistakenly interpretedthe plain meaning of Section did not challenge the Chancery Division judge's interpretation
40. Unpersuaded at the conclusion of argument, the judge
of Section 40. Id. at 578. Nor did we address in Kuhnel
denied Panckeri's motion in an oral decision that accompanied
the issue raised on appeal in the present matter. See id. at
a January 14, 2020 order. 2 This appeal followed.
572-73.
On appeal, Panckeri renews the contentions he asserted before
Nonetheless, Panckeri cites the following portion of our
the judge of compensation, raising a single point for our
decision in Kuhnel to support his argument:
consideration:
[T]he lien asserted by an employer or its
workers’ compensation insurance carrier in a workers’
LIENS PURSUANT TO N.J.S.A. compensation matter pursuant to [Section 40] against any
34:15-40 MUST EXCLUDE ANY recovery in a third-party action shall consist only of

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Panckeri v. Allentown Police Department, Not Reported in Atl. Rptr. (2021)
2021 WL 795251

petitioner's portion of attorneys’ fees and costs. See L. 2007,
medical expenses incurred and compensation paid, and said
c. 23, § 1. We further agree with the judge that had the
compensation shall not include the respondent's portion of
Legislature intended to include the petitioner's fees and costs
the petitioner's attorneys’ fees nor the respondent's portion
in Section 40, itcould have done so through the 2007
of the petitioner's experts’ fees.
amendment or at any other time in the Act's one-hundred and
[Id. at 576 (emphasis added).] ten-year history. See Galicia, 210 N.J. at 382. Panckeri's
concededly novel argument “is best leftfor consideration
Seizing on the language we now emphasize, Panckeri argues by the Legislative and Executive branches of government.”
the petitioner'sportion of counsel fees and costs likewise
must be excluded from the APD's Section 40 lien in the In re Declaratory Judgment Actions Filed by Various
present matter. We disagree. In Kuhnel, we addressed only the Municipalities, 446 N.J. Super. 259, 267 (App. Div. 2016);
respondent employer's share of fees and costs. Ibid. Notably, see also State v. Saavedra, 433 N.J. Super. 501, 525 (App.
we held expenses that “benefitted the employee” are included Div. 2013).
in the employer's Section 40 lien.Id. at 573. Although
we were not asked to consider the petitioner's counsel fees To the extent not specifically addressed, Panckeri's remaining
and costs, we noted that the insurance carrier's Section 40 arguments lack sufficientmerit to warrant discussion in a
lien “included, among other things, the portions of Kuhnel's written opinion. R. 2:11-3(e)(1)(E).
counsel fees and other fees and costs which were assessed
against [the employer] by the compensation court.” Id. at 574. Affirmed.

Moreover, we decided Kuhnel eight years before Section
All Citations
40 was amended. As the compensation judge correctly
recognized, the 2007 amendment made no mention of the Not Reported in Atl. Rptr., 2021 WL 795251

Footnotes

1 As the compensation judge aptly noted: “Although practitioners in the Division colloquially use the term[,]
‘Section 40 lien,’ the statutory rights are actually rights of subrogation, allowing the [employer] to step into
the shoes of the [employee] for the third[-]party claim.”
2 Although Panckeri's notice of appeal only cites the judge's December 3, 2019 order, his attorney clarified at
oral argument before us that Panckeri appeals from both others.

Case Info

Judge

Peter A Bogaard Track Judge’s New Case

Case No.

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Document Filed Date

August 20, 2021

Case Filing Date

April 01, 2019

County

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