NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-5033-18T4
OF MORRISTOWN, PA,
SURGICARE OF JERSEY CITY,
Argued telephonically August 4, 2020 –
Decided October 7, 2020
Before Judges Rothstadt and Firko.
On appeal from the Department of Labor, Division of
Workers' Compensation, Claim Petition Nos. 2018-
29163 and 2018-19349.
Michael J. Smikun argued the cause for appellant
Anesthesia Associates of Morristown, PA (Callagy
Law, PC, attorneys; Rajat Bhardwaj, on the briefs).
Donna J. Sova argued the cause for respondent
Weinstein Supply Corporation (Viscomi & Lyons,
attorneys; Donna J. Sova, on the brief).
Rajat Bhardwaj argued the cause for appellant
Surgicare of Jersey City (Callagy Law, PC, attorneys;
Rajat Bhardwaj, on the briefs).
Francis W. Worthington argued the cause for
respondent Waldbaums (Worthington & Worthington,
LLC, attorneys; Francis W. Worthington, on the brief).
In these two appeals that we calendared back to back and have
consolidated for the purpose of writing one opinion, we are asked to determine
whether New Jersey medical providers can file an independent claim under the
New Jersey's Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, to
recover payment for their services from their patients' employers, where the
patients lived and worked outside of New Jersey, were injured outside of New
Jersey, and filed workers' compensation claims in their home states that resulted
in payments being made to their New Jersey providers. For the reasons that
follow, we conclude that the New Jersey medical provider cannot maintain an
action under the WCA under these circumstances.
Petitioners Anesthesia Associates of Morristown, PA (AAM) and
Surgicare of Jersey City (SJC), both appeal from orders issued by two judges of
compensation dismissing their medical provider claims (MPC) for lack of
jurisdiction. AAM argues that the judge of compensation's decision was an
"extraordinarily brazen, unsupportable misuse of authority," while SJC contends
the judge's decision in its case was "incoherent," and "preposterous."
According to both providers, the WCA grants the Division of Workers'
Compensation (Division) with broad exclusive jurisdiction over MPCs, even if
there is no claim for compensation by an injured employee pending in New
Jersey. Additionally, they argue MPCs are separate causes of action, rooted in
breach of contract "over which the State of New Jersey has jurisdiction through
the Division," and case law determining jurisdiction over injured employee
claims is not binding. Also, in SJC's matter, it contends the judge of
compensation, sua sponte, improperly dismissed its claim because of a lack of
personal jurisdiction, but in doing so, the judge properly "conced[ed] that the
Division may exercise subject matter jurisdiction over" its claim. We find no
merit to any of these contentions.
The material facts of each claim are generally undisputed. In AAM's
matter filed under docket number A-5033-18, the employee suffered
compensable work-related injuries in an accident in 1998. The accident took
place in Pennsylvania, the injured worker was a Pennsylvania resident, and the
employer, respondent Weinstein Supply Corporation (Weinstein), was based in
Pennsylvania. The injured worker filed a claim with the Pennsylvania Bureau
of Worker's Compensation (PABWC).
On March 22, 2018, AAM provided services to the injured worker at a
New Jersey hospital during a procedure. It then submitted a claim to the
Pennsylvania Department of Labor and Industry (PDOLI) and received payment
of $1,070.30 in accordance with the PDOLI fee schedule.1 AAM did not
challenge or otherwise appeal the award. AAM submitted a Health Insurance
Claim Form for $12,992 to Liberty Mutual Insurance (Liberty), Weinstein's
workers' compensation insurance carrier, seeking payment of the balance it
According to the judge of compensation, Pennsylvania has a fee schedule ,
while New Jersey bases payment on the "usual and customary charges" for the
service provided within the provider's geographic area.
When the claim was not paid, on October 25, 2018, AAM initiated its
MPC by filing a Medical Provider Application for Payment (MPAP) with the
Division, even though, as stated in the MPAP, there was no pending workers'
compensation claim filed in New Jersey by the employee.2 Like all MPAPs, the
document stated that AAM alleged that "the Employee sustained an injury by an
accident arising out of and in the course of his/her employment with Respondent,
[that was] compensable under [the WCA]."
Weinstein filed an Answer denying that the Division had jurisdiction and
disclosing that the employee had filed a claim in Pennsylvania. It later filed a
motion to dismiss for lack of jurisdiction, which AAM opposed. In support of
its motion, Weinstein filed a certification from its counsel setting forth the facts
that demonstrated there was no connection between New Jersey and the injured
employee, who had filed a claim in Pennsylvania, or his employer. In
opposition, AAM filed a brief that did not dispute any of the material facts, but
argued that the court of compensation had jurisdiction over the claim because
Although the MPAP indicated the same single date of service as the Health
Insurance Claim Form, it also stated that the amount billed was $25,984.00, or
twice as much as the amount submitted to Liberty and disclosed the $1,070.30,
previously paid through the PDOLI. There is no explanation as to why the
amounts billed are inconsistent.
N.J.S.A. 34:15–15 vested the Division with "exclusive jurisdiction for any
disputed medical charge[,] and because New Jersey had a substantial interest in
the subject matter – the payment of New Jersey medical providers' bills."
On June 19, 2019, the judge of compensation granted Weinstein's motion
and dismissed AAM's claim for lack of jurisdiction. In her written decision, the
judge rejected AAM's broad reading of N.J.S.A. 34:15–15, finding that it would
distort the meaning of the statute. In her view, "[i]t should go without saying
that when the Legislature amended N.J.S.A. 34:15–15 to give the workers'
compensation court exclusive jurisdiction for any disputed charges arising from
any claim for a work related injury or illness[,] that the claim had to be one
compensable under New Jersey law." She concluded that the provider's claim
was "derivative," of the injured worker's claim.
Applying the six "Larson factors," as relied upon by the New Jersey
Supreme Court in Williams v. Port Auth. of N.Y. & N.J.,
(2003) (establishing the proper jurisdictional analysis for an employee's
occupational disease claim and discussing the common factors used to confer
jurisdiction) (citing 9 Lex K. Larson et al., Larson's Workers' Compensation
Law, §142.01 (Matthew Bender, rev. ed. 2000)), to determine whether New
Jersey had jurisdiction, the judge found that under the circumstances,
[n]one of these possible bases to assert New Jersey
jurisdiction exist [because the employee] lived in
[Pennsylvania], worked in [Pennsylvania], and the
accident occurred in [Pennsylvania]. The contract of
hire occurred in [Pennsylvania]. No contract exits
between [AAM] and Weinstein. The only connection
to New Jersey is that [the employee] underwent one day
of medical treatment with [AAM] in New Jersey.
Citing to Wenzl v. Zantop Air Transport Inc.,
(App. Div. 1967) (explaining that an
employee's in-state domicile alone, without any employment contacts, is
insufficient to confer jurisdiction in New Jersey), the judge stated that as our
courts have held "a petitioner's New Jersey residence alone is an insufficient
basis for jurisdiction[, c]learly one day of treatment in New Jersey is insufficient
to grant New Jersey jurisdiction over this [claim]." The judge continued by
distinguishing the case before her from those argued by AAM in opposition to
Weinstein's motion before concluding that the claim had to be dismissed. This
On July 23, 2019, the judge revised her written decision to correct her having
mistakenly stated on page three of the opinion that the injured employee lived,
worked, and was injured in New York, rather than Pennsylvania.
Turning to SJC's matter filed under docket number A-5718-18, the facts
are similar. The injured employee, a resident of New York, who had been hired
in New York by his employer, Stop & Shop, suffered a compensable injury as a
result of a work-related accident at work in Brooklyn, New York on February
20, 2010. The injured employee filed a workers' compensation claim in New
York. On January 5, 2017, the employee's New York physician filed with the
Workers' Compensation Board of New York (WCBNY) a request for
authorization for the employee to undergo surgery, listing the injured worker's
employer as Stop & Shop at a Brooklyn, New York address.
On March 6, 2017, the WCBNY determined that the injured employee had
an ongoing medical disability and that surgery was necessary. The WCBNY's
determination identified the employer as Stop & Shop and stated that the
"employer is liable for the payment of these services in accordance with" New
York law. On August 11, 2017, the employee underwent surgery at SJC's
facility in Jersey City. SJC thereafter received a payment of $20,085.28 through
On July 17, 2018, SJC initiated its MPC by filing a MPAP with the
Division that contained the same allegation as in AAM's MPAP about the
worker's injury being compensable under the WCA, and further stated it billed
$252,900 for services rendered to the employee and that it had been paid
$20,085.28. The MPAP identified respondent Waldbaum's, located in
Montvale, as the employer. 4
Waldbaum's filed an answer averring that SJC had been paid "for all
benefits due" to it. On August 2, 2018, it also filed a motion to dismiss for lack
of jurisdiction. In support of its motion it filed a certification from counsel
attesting to the facts that established New Jersey had no relation to the
employee's injury or claim and for that reason SJC's claim should be dismissed.
Citing to N.J.S.A. 34:15–15, Waldbaum's argued that the WCA "only allows . . .
Applications for Payment when the injured employee has a cognizable claim
pursuant to the" WCA.
SJC filed its opposition to the motion to dismiss. In its opposition, SJC
raised the same arguments made by AAM in opposition to the motion filed in
that matter. It also argued that since Waldbaum's did business in New Jersey
and the employee was treated in New Jersey, the claim should not be dismissed.
This inconsistency as to the injured employee's employer was never explained
but, in any event, it was deemed inconsequential by the judge of compensation,
as it was undisputed that the employee worked and was injured while employed
in Brooklyn, New York.
Moreover, citing Williams v. A&L Packing & Storage,
465–66 (App. Div. 1998), and unreported court of compensation cases, SJC
contended that the filing of the New York action, did not bar SJC from pursuing
its claim in New Jersey. Relying on language contained in a WCBNY form and
New York case law, SJC also stated that if it could not secure relief in New
Jersey, it would be left without any forum to recover as New York refused to
address out of state claims. According to SJC, under the United States Supreme
Court's holding in Marbury v. Madison,
(1803), New Jersey was
compelled to accept jurisdiction of SJC's claim so as to insure it had the ability
to pursue recovery of its claim.
On July 18, 2019, the judge of compensation dismissed the action with
prejudice for lack of jurisdiction. In her oral decision, placed on the record that
day, the judge found that SJC
provided medical treatment . . . to a patient who had
sustained an injury in a work related accident; . . . the
patient who lived in New York, who worked in New
York for a New York employer, who was injured in
New York and who received medical treatment in New
York, was directed by his New York doctor to a surgical
center in New Jersey for a single, one day visit. The
patient's same day surgery was performed by a New
York doctor using equipment and devices ordered by
the New York doctor. The petitioner has filed claims
in New Jersey's workers' compensation court seeking
payment above and beyond that authorized by the
workers' compensation law of the State of New York.
The judge then stated that while the issue of "subject matter jurisdiction
vis a vis [sic] personal jurisdiction can be somewhat confounding . . . to [her,]"
she turned to the facts relating to the contacts between the employee, his injuries
and SJC's services to determine if she could consider SJC's claim. The judge
stated that "a single contact with the State of New Jersey, namely one day of
treatment in New Jersey or the provision of medical supplies to the doctor for
that one day of treatment . . . does not rise to the standard of sufficient
purposeful minimal contacts requisite to vest this court with personal
The judge also noted the unexplained difference between the
identification of the employee's employer as being Stop and Shop in Brooklyn,
New York and Waldbaum's in Montvale, which she speculated was the parent
company of the other and determined that it did not matter which was correct.
Moreover, although she expressed sympathy for SJC not receiving more than it
did through New York, she found that it was aware that its services would be
reimbursed in accordance with New York's fee schedule as set forth on the
authorization issued by the WCBNY for the employee's surgery.
The judge rejected SJC's contention that it was without a remedy and
noted that SJC had one but it "simply [was] without the remedy [it] liked,"
referring to SJC's reimbursement through the New York compensation action.
Turning to SJC's reliance on Williams, the judge concluded by observing she
was the judge of compensation who originally decided that case and there she
found "sufficient purposeful minimal contacts and therefore purposeful
jurisdiction to hear the . . . case," but as to the present matter it was "not the case
here." This appeal followed.
Our scope of review of a judge of compensation's decision "'is limited to
whether the findings made could reasonably have been reached on sufficient
credible evidence present in the record, . . . with due regard to the agency's
expertise.'" McGory v. SLS Landscaping,
, 452 (App. Div.
2020) (quoting Hersh v. Cty. of Morris,
, 242 (2014)). Even if we
may be inclined to do so, we "may not substitute [our] own factfinding for that
of the [j]udge of [c]ompensation." Lombardo v. Revlon, Inc.,
, 488 (App. Div. 2000).
"However, 'interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference.'" Renner v.
, 448 (2014) (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan,
, 378 (1995)). Whether the Division has
subject matter jurisdiction over a claim is a question of law, which this court
reviews de novo. Marconi v. United Airlines,
, 337 (App.
We begin our review by acknowledging that under certain circumstances,
medical providers can pursue payment for services rendered to employees who
suffer a compensable injury under the WCA. The Act generally requires that
when a worker is injured in the course of his or her employment, the employer
must furnish the injured worker with medical, surgical and other treatment
required to cure and relieve the worker of the effects of the injury and to restore
the worker's functions. N.J.S.A. 34:15–15. In 2012, the Legislature amended
N.J.S.A. 34:15–15 to grant the Division "[e]xclusive jurisdiction for any
disputed medical charge arising from any claim for compensation for a work-
related injury or illness."
Ibid. (emphasis added). The
Legislature amended the
statute to address an "increase in medical billing disputes between insurers and
medical providers," Plastic Surgery Ctr., PA v. Malouf Chevrolet-Cadillac, Inc.,
, 569 n.3 (App. Div. 2019) (addressing the applicable statute
of limitation relative to a medical provider's claim), aff'd o.b.,
(2020), by "more formally herding all medical-provider claims into the
Id. at 569.
Ascribing to the amendment's plain language its "ordinary meaning and
, 492 (2005)),
and contrary to AAM's and SJC's arguments, by limiting its application to
"claim[s] for compensation," the amendment did not apply to MPCs in matters
where the Division did not have jurisdiction over an employee's related claim
under the WCA. That limitation was recognized by both AAM and SJC when
they executed their MPAPs that alleged the employees' claims were
"compensable under [the WCA]." Unless the Division has jurisdiction over the
underlying claim for a compensable work-related injury, it does not have
jurisdiction over a MPC for payment.
Our conclusion is consistent with the statutory limits placed upon the
Division. "[T]he Workers' Compensation Court [now Division] is statutory,
with limited jurisdiction." Williams v. Raymours Furniture Co.,
, 562 (App. Div. 2017) (quoting Connolly v. Port Auth. of N.Y. & N.J., 317
, 318 (App. Div. 1998)). Whether the Division has jurisdiction
over a claim arising from compensable work-related injury depends upon the
particular factors of each case.
Marconi,460N.J. Super. at 337
New Jersey resident's claim arising from an out of state work-related injury).
The injured employee's "residency alone is an insufficient basis to confer
jurisdiction on the Division for extraterritorial workplace injuries ."
Id. at 340.
In order to make the determination, a court of compensation must apply
six bases: "(1) Place where the injured occurred; (2) Place of making the
contract; (3) Place where the employment relation exists or is carried out; (4)
Place where the industry is localized; (5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contract."
Williams,449N.J. Super. at 563
(quoting 13 Lex K. Larson et al., Larson's Workers'
Compensation Law, § 142.01 (Matthew Bender, rev. ed. 2016)). See also
Marconi,460N.J. Super. at 335
Connolly,317N.J. Super. at 319
. Apart from
these factors, if New Jersey is not the "location of the injury, location of the
employment contract or hiring, or residency of the employee . . . jurisdiction
may still arise where the 'composite employment incidents present a[n] . . .
identification of the employment relationship with [New Jersey].'"
Marconi,460N.J. Super. at 341
Connolly,317N.J. Super. at 320
Applying these considerations to the two cases before us, we agree with
the two judges of compensation that there was no cognizable claim for a work-
related injury in either case. Therefore, the Division did not have jurisdiction
over AAM's or SJC's claims and they were appropriately dismissed,
substantially for the reasons expressed by the two judges of compensation.
We are not persuaded otherwise by the cases cited by AAM and SJC as,
for the most part, the cases involved claims by medical providers where the
Division had jurisdiction over the underlying employee's claim. In the one
instance that the two providers cite to a case decided by another judge of
compensation that appears to support their arguments, we disagree with the
holding in that case to the extent it is applicable to AAM's and SJC's claims.
We also conclude that AAM's and SJC's remaining arguments are without
sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(D).
Suffice it to say that their contentions based on an alleged breach of contract are
unsupported by any evidence of an agreement between either of them and the
injured employees' employers. Absent such evidence, an employer's liability for
an employee's medical bills relating to a work-related injury arises only by virtue
of the WCA.5 See Hager v. M & K Constr.,
, 169 (App.
Div.) ("If the workers' compensation court finds the injury compensable and the
medical services reasonable and necessary, the employer is responsible for the
expenses incurred by the employee for the treatment of the injury.") (quoting
Christodoulou,180N.J. at 345
), certif. granted,
Also, to the extent the one judge of compensation described the issue
before her in SJC's case as being one of "personal jurisdiction" we are satisfied
from the judge's analysis that she properly addressed the issue as one relating to
subject matter jurisdiction. Even if she did not, "appeals are taken from orders
and judgments and not from opinions, oral decisions, informal written decisions,
or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway,
, 199 (2010). Here, the judge's order dismissing the claim was
Any contract is typically between the service provider and the injured worker.
See Univ. of Mass. Mem'l Med. Ctr., Inc. v. Christodoulou,
(2004) ("Although the Act grants the medical provider a statutory basis for
seeking payment from an employer when it has rendered services to an injured
worker, . . . it does not nullify the contractual right of the provider to seek
payment directly from the employee, the beneficiary of the services." (citations
Finally, we would be remiss if we did not comment on AAM's and SJC's
counsels' briefs that accused the two judges of either abusing their authority or
rendering incoherent or preposterous decisions. We view these pejorative
attacks on the judges to be totally unwarranted and disrespectful. The judges of
the court of compensation, like other judges, are dedicated public servants who
strive each day to properly assess the cases before them after giving due regard
to the facts and the applicable law. Most times, as here, they render legally
correct decisions. Other times, lawyers and appellate courts might disagree with
them, or they might have made a mistake, but that does not render their
thoughtful consideration of the case to be in any manner an abuse of their power,
preposterous or incoherent. Such characterizations do little to advance a client's
position and unjustifiably undermines the public's confidence in the judiciary.
We hope that in the future counsel will think twice before resorting to such