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Sunday, July 31, 2016


Plaintiff appeals from the denial of her motion to declare the medical benefits portion of a workers' compensation lien unenforceable. She argues since medical benefits that could have been paid through plaintiff's personal injury protection policy are not recoverable from a tortfeasor, they also are not subject to repayment to the workers' compensation insurance carrier (the carrier) pursuant to N.J.S.A. 34:15-40 (section 40) of the Workers' Compensation Act (the Act), which permits reimbursement of benefits when a third-party caused the employee's injury. 

Examining the purpose of the Automobile Insurance Cost Reduction Act's no-fault provisions and section 40, we conclude an employee who receives medical expenses as workers' compensation benefits is permitted to seek recovery of those sums from the third-party. Nevertheless, the Act entitles the carrier to repayment from a third–party recovery of all medical benefits paid, even when the resultant net recovery does not fully compensate the employee. 

Lamar Williams v. American Auto Logistics (A-10-15; 076004)

Trial courts may not deprive civil litigants of their constitutionally protected right to a jury trial as a sanction for failure to comply with a procedural rule. In addition, Rule 4:25-7 does not apply to proceedings in the Superior Court, Law Division, Special Civil Part. 

Karen K. Johnson v. Roselle EZ Quick, LLC (A-33-14; 075044)

 Karen K. Johnson v. Roselle EZ Quick, LLC (A-33-14; 

The 2011 amendment to N.J.S.A. 39:6A-9.1 does not expressly or implicitly present any of the factors necessary to rebut the presumption that, as a newly enacted law, it should be applied prospectively. Consequently, the amendment does not apply to plaintiff’s claims for personal injuries. The trial court therefore properly granted GEICO’s motion for summary judgment on its claim for reimbursement of the PIP benefits that it paid to plaintiff. 

In the Matter of the Adoption of a child by J.E.V. & D.G.V. (A-39-15; 076767)

 In the Matter of the Adoption of a child by J.E.V. & 
D.G.V. (A-39-15; 076767) 

Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution. 

Online Arbitration clause did not bar suit against trampoline park DEFINA V. GO AHEAD & JUMP 1, LLC

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5751-15. David K. Chazen argued the cause for appellant (Chazen & Chazen, LLC, attorneys; Mr. Chazen, on the briefs). José D. Roman argued the cause for respondent (Powell & Román, LLC, attorneys; Aisha Farraj, on the brief). PER CURIAM 
Plaintiffs Alexander Defina, a minor, by his parents and guardians ad litem, Michael Defina and Dahina Defina, appeal from an order entered by the Law Division on October 23, 2015, which required plaintiffs to submit any disputes with defendant Go Ahead and Jump 1, LLC, to arbitration, and staying further proceedings in this matter. Plaintiffs also appeal from an order entered by the court on December 4, 2015, which denied reconsideration of the October 23, 2015 order. For the reasons that follow, we reverse. 


Defendant owns and operates the Sky Zone Indoor Trampoline Park (SZITP) in Pine Brook. Defendant requires all of its customers to sign a document entitled, "Participation Agreement, Release and Assumption of Risk" (the Agreement) before using the facility. 
The Agreement provides in pertinent part that, in consideration of SZITP allowing participation 
in trampoline games or activities, I for myself and on behalf of my child(ren) and/or legal ward, heirs, administrators, personal representatives, or assigns, do agree to hold harmless, release and discharge SZITP of and from all claims, demands, causes of action, and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to SZITP's ordinary negligence; and I, for myself and on behalf of my child(ren) and/or legal ward, heirs, administrators, personal representatives, or any assigns, further agree that except in the event of SZITP's gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and
causes of action, against SZITP for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child(ren) that are in any way associated with [defendant's] trampoline games or activities. Should SZITP or anyone acting on [its] behalf be required to incur attorney's fees and costs to enforce this Agreement, I for myself and on behalf of my child(ren), and/or legal ward, heirs, administrators, personal representatives or assigns, agree to indemnify and hold them harmless for all such fees and costs.

The Agreement includes an arbitration clause, which states: 
If there are any disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren) may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. I further agree that the arbitration will take place solely in the state of Texas and that the substantive law of Texas shall apply. If, despite the representations made in this agreement, I or anyone on behalf of myself and/or my child(ren) file or otherwise initiate a lawsuit against SZITP, in addition to my agreement to defend and indemnify SZITP, I agree to pay within 60 days liquidated damages in the amount of $5,000 to SZITP. Should I fail to pay this liquidated damages amount with the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount calculated at 12% per annum.

In addition, the Agreement included the following statement, which was printed in bold type: 
By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against SZITP on the basis of any claim from which I have released them herein. I have had sufficient opportunity to read this entire document. I understand this Agreement and I voluntarily agree to be bound by its terms.

The Agreement also contains a severability clause, which states that, "I agree that if any portion of this agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect." 
On February 8, 2014, Michael Defina signed the Agreement electronically on defendant's website. He certified that he was the legal guardian of two participants: Alexander Defina, who was then nine years old, and another child. 
On June 18, 2015, plaintiffs filed a complaint in the Law Division. They alleged that on February 8, 2014, Alexander was a business invitee at SZITP and was injured while participating in various activities in the facility, including "Ultimate Dodgeball." Plaintiffs alleged that defendant failed to provide adequate warnings and instructions regarding the dodgeball activity; was negligent and careless in creating, advertising and promoting an ultra-hazardous and dangerous dodgeball game; and failed to properly supervise, attend to, control or regulate the conduct of other invitees over whom defendant had supervisory responsibility, thereby rendering the dodgeball game unsafe and ultra-hazardous for persons participating in that game. 
Plaintiffs also asserted claims of gross negligence, and alleged that defendant acted in a willful and wanton manner in creating, advertising and promoting an inherently dangerous game. They further alleged that defendant knew or should have known that statements in the Agreement were false, inaccurate and contrary to established New Jersey case law, and the Agreement should be reformed or rescinded. 
In addition, plaintiffs alleged that defendant's use of the Agreement was an unconscionable commercial practice in violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184, and the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. Among other relief, plaintiffs sought compensatory and punitive damages, interest, attorney's fees, and costs of suit. 


On September 2, 2015, defendant filed a motion to compel arbitration and stay proceedings in the lawsuit. On September 29, 2015, plaintiffs opposed defendant's motion and filed a cross-motion to rescind the Agreement. The motion judge heard oral argument on October 23, 2015, and thereafter entered an order compelling arbitration and staying this action. In a rider to the order, the judge stated that Michael Defina had validly agreed to arbitration on behalf of his minor child, and there was no evidence that he had been coerced into signing the Agreement. The judge found that the arbitration clause was enforceable. 
The judge noted that defendant had chosen not to enforce the forum selection clause in the Agreement, and had agreed that the arbitration could be conducted in New Jersey or New York, with New Jersey choice of law and a New Jersey arbitrator. The judge found that New Jersey was the proper forum for this matter. The judge also determined that the Agreement's attorney's fees provision, the liquidated damage provision, and the waiver clause limiting claims to conduct involving more than ordinary negligence were against public policy and not enforceable. 
Plaintiffs thereafter filed a motion for reconsideration. After hearing oral argument by the attorneys, the judge entered an order dated December 4, 2015, denying the motion. In the rider attached to the order, the judge stated that plaintiffs had not provided any basis for reconsideration of the October 23, 2015 order. The judge rejected plaintiffs' contention that the arbitration clause clearly and unambiguously placed the person signing it on notice that he was waiving the right to a trial and agreeing that any disputes would be determined by binding arbitration. The judge also rejected plaintiffs' claim that the severability clause in the Agreement was void. This appeal followed. 
Plaintiffs argue that: (1) the motion judge erred by enforcing a contract that is invalid, fraudulent, and unconscionable; (2) enforcement of the Agreement was erroneous because it does not apply to personal injury claims arising from conduct greater than ordinary negligence; (3) severance of the arbitration clause is contrary to N.J.S.A. 56:12-16; (4) the arbitration clause is not enforceable; (5) the forum selection clause and choice of law provision of the Agreement are not enforceable; and (6) the court erred by reforming the arbitration clause, which requires the arbitration to take place in Texas, in accordance with Texas law. 


Plaintiffs argue that the trial court erred by enforcing the arbitration clause in the Agreement. We agree. 
The question of whether an arbitration clause is enforceable is an issue of law, which we review de novo. Atalese v. U.S. Legal Servs. Group, L.P.219 N.J. 430, 445-46 (2014). We owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty v. Twp. Comm.140 N.J. 366, 378 (1995). 
New Jersey has a strong public policy in favor of arbitration as a means of dispute resolution. Hojnowski v. Vans Skate Park187 N.J. 323, 342 (2006). "An arbitration agreement is a contract and is subject, in general, to the legal rules governing the construction of contracts." McKeeby v. ArthurN.J. 174, 181 (1951). 
Pursuant to "the Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, an arbitration 'agreement is . . . valid, enforceable, and irrevocable except upon a ground that exists in law or equity for the revocation of the contract.'" Cole v. Jersey City Med. Ctr.215 N.J. 265, 276 (2013) (quoting N.J.S.A. 2A:23B-6). When reviewing an order to compel arbitration, courts must take into account the strong public policy both at the state and federal levels favoring arbitration agreements. Hirsch v. Amper Fin. Servs., LLC215 N.J.174, 186 (2013). 
In Hojnowski, the Court held that an agreement by a parent to arbitrate claims of a minor child arising out of a commercial recreation contract was enforceable. Hojnowksisupra187 N.J. at 341-46. The Court stated that, in the absence of any allegations of fraud, duress, or unconscionability in the execution of the agreement, or a showing that the agreement to arbitrate was not written "in clear and unambiguous terms," the "parent's agreement to arbitrate is valid and enforceable against any tort claims asserted on the minor's behalf." Id. at 346. 
Here, plaintiffs do not claim that Michael Defina was fraudulently induced to execute the Agreement, or that he did so under duress. Plaintiffs argue, however, that the arbitration clause is not enforceable because it is not clear and unambiguous. They assert that the arbitration clause fails to inform the consumer he is giving up his right to bring a lawsuit in court and have the claim decided by a jury. 
In Hojnowski, the arbitration clause stated that the person signing the agreement was giving up the right to sue the recreational facility in a court of law, and the right to a jury trial. Id. at 328. However, the arbitration agreement at issue in Atalese stated that either party may submit any dispute to binding arbitration, a single arbitrator shall resolve the dispute, and the arbitrator's decision shall be final and may be entered as a judgment in a court of competent jurisdiction. Atalesesupra219 N.J. at 437
The Court in Atalese held that the arbitration clause was not enforceable because the clause did not clearly and unambiguously explain that the plaintiff was waiving the right to seek relief in court for a breach of statutory rights under the CFA and TCCWNA. Id. at 446-47. The Court stated that 
[t]he provision does not explain what arbitration is, nor does it indicate how arbitration is different from a proceedings in a court of law. Nor is it written in plain language that would be clear and understandable to the average consumer that she is waiving statutory rights. The clause has none of the language that our courts have found satisfactory in upholding arbitration provisions — clear and unambiguous language that the plaintiff is waiving her right to sue or go to court to secure relief.
[Id. at 446.]

The Court noted that arbitration clauses had been upheld because they "explained that arbitration is a waiver of the right to bring suit in a judicial forum." Id. at 444. The Court provided examples of enforceable arbitration agreements. Id. at 444-45. 
In Martindale v. Sandvik, Inc.173 N.J. 76, 82-82 (2002), the agreement stated that the plaintiff had agreed to waive her right to a jury trial, and have all employment-related disputes decided by an arbitrator. Similarly, in Griffin v. Burlington Volkswagen, Inc.411 N.J. Super. 515, 518 (App. Div. 2010), the agreement stated that, by agreeing to arbitration, the parties were "waiving their rights to maintain other available resolution processes, such a court action or administrative proceeding, to settle their disputes." In addition, in Curtis v. Cellco P'ship413 N.J. Super. 26, 31(App. Div.), certif. denied203 N.J. 94 (2010), the arbitration provision stated 
Instead of suing in court, we each agree to settle disputes (except certain small claims) only by arbitration. The rules in arbitration are different. There's no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in the agreement as a court would.

The Atalese Court stated that "MartindaleGriffin, and Curtisshow that, without difficulty and in different ways, the point can be made that by choosing arbitration one gives up the 'time honored right to sue.'" Id. at 445 (quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs.168 N.J. 124, 132 (2001)). The Court added, however, 
We do not suggest that the arbitration clause has to identify the specific constitutional or statutory right guaranteeing a citizen access to the court that is waived by agreeing to arbitration. But the clause, at least in some general and sufficiently broad way, must explain that the plaintiff is giving up her right to bring her claims in court or have a jury resolve the dispute.
[Id . at 446-47.]

We are convinced that the arbitration clause at issue in this matter did not clearly and unambiguously inform plaintiff that he was giving up his right to bring claims arising out of the participation in activities at SZITP in a court of law and have a jury decide the case. The arbitration clause states that the person signing the agreement waives any right to a "trial" and agrees that any dispute shall be determined "by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures." 
Although the clause refers to a "trial", there is no "clear and unambiguous statement that the person signing the Agreement is waiving [his] right to sue or go to court to secure relief." Id. at 446. Indeed, there is no reference in the clause to a court or a jury. The Agreement also does not explain how arbitration differs from a proceeding in a court of law. We conclude that the Agreement did not clearly and unambiguously inform Michael Defina that he was "giving up his right to bring [his] claims in court and have a jury resolve the dispute." Id. at 447 (footnote omitted). 
Accordingly, we conclude that the trial court erred by finding that arbitration clause in the Agreement is enforceable. We therefore reverse the order compelling arbitration and staying further trial court proceedings. In view of our decision, we need not address the other issues raised by plaintiffs. We remand the matter to the trial court for further proceeding on plaintiffs' claims. 
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction

Sunday, July 17, 2016


          SUPREME COURT'S DECISION IN In Re Adoption of N.J.A.C.
          5:96, 221 N.J. 1 (2015)
We granted leave to appeal from an order entered by a designated Ocean County Mount Laurel judge requiring the court's Special Regional Master to include, as a new, "separate and discrete" component, an additional calculation for establishing a municipality's affordable housing need from 1999 to 2015 (the gap period). In entering the order, the judge concluded that a municipality's fair share affordable housing obligation for the third-round cycle is comprised of (1) its newly-created, court- imposed, "separate and discrete" gap-period obligation; (2) unmet prior round obligations from 1987 to 1999; (3) present need; and (4) prospective need.
The narrow legal issue on appeal is whether such a retrospective obligation is authorized by (1) the core principles of the Mount Laurel doctrine, as codified in the Fair Housing Act of 1985 (FHA), N.J.S.A. 52:27D-301 to -329; and (2) In re Adoption of N.J.A.C. 5:96 & 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015). Resolution of this legal question specifically addresses whether a municipality's prospective need involves a retroactive housing obligation starting in 1999. We focused on the propriety of the court's conclusion that such a "separate and discrete" obligation was "constitutionally mandated."
Applying the Mount Laurel doctrine and the plain language of the FHA, including its unambiguous definition of "prospective need" a forward "projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality" and following the Supreme Court's admonition not to become an alternative administrative decision maker for unresolved policy issues surrounding the Third Round Rules, we held that the FHA does not require a municipality to retroactively calculate a new "separate and discrete" affordable housing obligation arising during the gap period. We acknowledged that identifiable housing need that arose during the gap period would be captured by a town's present need obligation.
We emphasized that under our tripartite system of government, the imposition of a new retrospective calculation, designed to establish affordable housing need during the gap
page2image20376 page2image20536 page2image20696 page2image20856

period a new methodology that essentially addresses "unresolved policy details of replacement Third Round Rules" is best left for consideration by the Legislative and Executive branches of government, where public policy issues associated with such an additional obligation can be fairly and fully debated in the public forum. The Legislature may craft new legislation addressing such a retrospective need that may have arisen during any gap period between housing cycles if that is the course it wishes to take. Enforcement of subsequent legislation promoting affordable housing needs and its effect on a municipality's Mount Laurel obligation would still be a matter that may be brought to the courts. 


In this case, we address the constitutionality of N.J.S.A. 19:31-6.3(b), which requires all eligible persons to register to vote no later than twenty-one days prior to an election. Plaintiffs assert they should be permitted to register to vote on election day, and that the twenty-one-day advance registration requirement improperly infringes on their right to vote under N.J. Const. art. II, § 1, ¶ 3(a). Based upon our review of the record and applicable law, we conclude that the statute furthers the fundamental State interest in preserving the integrity of New Jersey's electoral process, while imposing no unreasonable burden upon plaintiffs' right to vote. Therefore, we conclude that N.J.S.A. 19:31-6.3(b) is constitutional.
In a concurring opinion, Judge Ostrer notes that it is the job of the Legislature to determine the mode and manner of voting, and our role is limited to reviewing the constitutionality of legislative policy judgments enacted into law. Therefore, he would find twenty-one-day advance registration constitutional without adopting the policy judgments discussed in the majority opinion that support it. 

IMO the Imposition of Probation on Eastwick College LPN to RN Bridge Program (A-35-14

IMO the Imposition of Probation on Eastwick College
          LPN to RN Bridge Program (A-35-14; 074772)
          Based on the plain language of N.J.A.C. 13:37-
          1.3(c)(2), the Board’s construction of its regulation
          is plainly unreasonable.  Accordingly, the Board
          improperly denied accreditation to Eastwick’s Bridge

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14; 076195)

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14;
          The duty of care recognized in Olivo v. Owens-
          Illinois, Inc., 186 N.J. 394 (2006) may, in proper
          circumstances, extend beyond a spouse of a worker
          exposed to a workplace toxin that is the basis for a
          take-home toxic-tort theory of liability.

Globe Motor Company v. Ilya Igdalev (A-43-14

Globe Motor Company v. Ilya Igdalev (A-43-14; 074996)
          The record before the motion court, when viewed under
          the summary judgment standard prescribed by Rule 4:46-
          2(c), did not establish plaintiffs’ right to judgment
          as a matter of law.  When all legitimate inferences
          are drawn in defendants’ favor, as required by the
          summary judgment standard, there exists a genuine
          issue of material fact on the critical question of
          whether the settlement monies paid to Globe were Auto
          Point’s assets, or, instead, were owned by defendant’s
          friend and owed to defendant.

Workers comp carrier gets reimbursed from PI settlement








June 22, 2016

Argued May 16, 2016 - Decided

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-401-13.


                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-3160-14T1
Plaintiff Tina Talmadge appeals from a January 29, 2015 order denying to declare the medical benefits portion of a workers' compensation lien unenforceable.  The Hartford intervened in this matter seeking reimbursement from any recovery the defendant tortfeasor paid to plaintiff.  On appeal, plaintiff argues because benefits that could have been paid through plaintiff's personal injury protection (PIP) provisions of her automobile liability policy are not recoverable from the tortfeasor, a workers' compensation lien for payment of similar costs should be denied.  We disagree and affirm.
The facts are not disputed.  Plaintiff, while working for her employer, Child and Family Services, Inc., was driving her personal automobile when involved in an auto accident caused by defendant Connie Burns.  As a result of the accident, plaintiff underwent an anterior cervical fusion.  The Hartford, as the workers' compensation carrier of plaintiff's employer, paid plaintiff over $127,000 in medical, wage, and indemnity benefits. 
Plaintiff filed a complaint and ultimately settled her claims against Burns in the amount of Burn's auto insurance policy limit of $250,000.  The Hartford asserts a workers' compensation lien of $84,510.78 against this third-party recovery. 
Plaintiff moved to reduce The Hartford's claimed lien.  She argued The Hartford's inclusion of any medical benefits paid to plaintiff was legally unenforceable and not subject to reimbursement.  The Law Division judge denied plaintiff's motion, citing N.J.S.A. 34:15-40 (section 40) of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142.  Plaintiff filed this appeal.   
In enacting the Act, the Legislature sought to streamline recovery of benefits to workers injured in the course of employment.  Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 583-84 (2015).  Under the Act's remedial no-fault system, qualified employees receive medical treatment and limited compensation "without regard to the negligence of the employer."  Id. at 584 (quoting N.J.S.A. 34:15-7); see also Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006) ("[T]he remedial purpose of the Workers' Compensation Act [is] to make benefits readily and broadly available to injured workers through a non-complicated process.").
Section 40 permits a workers' compensation insurance carrier to seek reimbursement of benefits it pays when a third party, other than the employer, caused the employee's injury.  Utica Mut. Ins. Co. v. Maran & Maran, 142 N.J. 609, 613 (1995) ("Under section 40, the workers' compensation carrier is entitled to reimbursement whether or not the employee is fully compensated.").  The statute provides:
(a)       The obligation of the employer . . . under this statute to make compensation payments shall continue until the payment, if any, by such third party or his [or her] insurance carrier is made.

(b)       If the sum recovered by the employee   . . . from the third person or his [or her] insurance carrier is equivalent to or greater than the liability of the employer  . . . under this statute, the employer . . . shall be released from such liability and shall be entitled to be reimbursed, . . . for the medical expenses incurred and compensation payments theretofore paid to the injured employee . . . less employee's expenses of suit and attorney's fee as hereinafter defined.

[N.J.S.A. 34:15-40(a)-(b).]

More specifically, "section 40 prevents the worker from retaining any workers' compensation benefits that have been supplemented by a recovery against the liable third party."  Utica, supra, 142 N.J. at 613. 
Plaintiff argues, as a no-fault insured, she may not recover medical benefits from another no-fault insured.  Since The Hartford's subrogation rights are limited to claims plaintiff may assert, N.J.S.A. 34:15-40(f), she concludes the workers' compensation carrier has no entitlement to attach the recovery from the tortfeasor to recover medical expenses it previously paid.  We reject this syllogism as an inaccurate statement of the law. 
The statutory construct under the no-fault insurance system provisions of the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to -35, is "intended to serve as the exclusive remedy for payment of out-of-pocket medical expenses arising from an automobile accident" as a "trade-off for lower premiums and prompt payment of medical expenses."  Caviglia v. Royal Tours of Am., 178 N.J. 460, 466-67 (2004) (citing Roig v. Kelsey, 135 N.J. 500, 503, 511-12 (1994)).  Accordingly, an injured no-fault insured person who receives PIP benefits may not seek recovery from the tortfeasor for claims resulting from "medical, hospital and other losses for which he had already been reimbursed."  Bardis v. First Trenton Ins. Co., 199 N.J. 265, 279 (2009) (quoting Cirelli v. Ohio Cas. Ins. Co., 72 N.J. 380, 387 (1977)).  Thus, the Legislature did not intend "to leave the door open for fault-based suits when enacting the No-Fault Law."  Roig, supra, 135 N.J. at 516.
When an employee suffers an automobile accident while in the course of employment, workers' compensation is the primary source of satisfaction of the employee's medical bills, as provided by the collateral source rule, N.J.S.A. 39:6A-6, which "relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers' compensation benefits."  Lefkin v. Venturini, 229 N.J. Super. 1, 7 (App. Div. 1988).  "Where only workers' compensation benefits and PIP benefits are available, the primary burden is placed on workers' compensation as a matter of legislative policy by way of the collateral source rule of N.J.S.A. 39:6A-6."  Id. at 9 (citing Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550 (1981)).
In instances where an employee, as a result of a work related automobile accident injury, also has a claim for recovery against a third party, the Legislature overcame the possible "inequity of double recovery" by including section 40, which requires an injured employee to refund paid workers' compensation benefits once recovery is obtained from the tortfeasor, thereby avoiding duplication of the workers' compensation benefits by the tort recovery.  Frazier v. New Jersey Mfrs. Ins. Co., 142 N.J. 590, 597-98 (1995).  The statute clearly permits an employee who received workers' compensation benefits to seek recovery against the third-party for those benefits, including paid medical expenses.  The statute also expressly entitles the workers' compensation carrier to repayment of all benefits paid to the employee.  See Greene v. AIG Cas. Co., 433 N.J. Super. 59, 68 (App. Div. 2013).  
In Greene, we stated "[i]t has long been understood that the clear intent of [s]ection 40 . . . is to prevent an injured employee from recovering and retaining workers' compensation payments, while at the same time recovering and retaining the full damages resulting from a third-party tort suit."  Id. at 64 (citing United States Cas. Co. v. Hercules Powder Co., 4 N.J. 157, 163–65 (1950)).  This is so even if the net recovery after satisfaction of the workers' compensation lien does not fully compensate the employee.  Frazier, supra, 142 N.J. at 602.
            Accordingly, there is no basis to interfere with the Law Division order.  The employer's workers' compensation carrier's lien, which includes medical expenses paid, must be satisfied from plaintiff's $250,000 recovery from Burns.  N.J.S.A. 34:15-40(b).