MARIO LAZO v. CHARLES BESELER COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2015-04T32015-04T3

MARIO LAZO,

Petitioner-Appellant,

v.

CHARLES BESELER COMPANY,

Respondent-Respondent.

_________________________________________________

 

Argued March 15, 2006 - Decided March 29, 2006

Before Judges Stern and Grall.

On appeal from the judgment of the

Division of Workers' Compensation,

Docket No. 2000-038131.

Nancy C. Ferro argued the cause for appellant

(Donald Werner & Associates, attorneys;

Ms. Ferro, on the brief).

Francis T. Giuliano argued the cause for

respondent.

PER CURIAM

Petitioner Maria Lazo appeals from an order of the Division of Workers Compensation entered on November 12, 2004, which entered judgment awarding petitioner 15% of permanent partial disability following a contested hearing. Petitioner asserts that the claim had been settled before the hearing began, and contends that "the trial court erred in refusing to enforce the settlement between the parties by which petitioner would have received an award based on 25% permanent partial disability."

Petitioner claims that settlement was made with respondent's carrier, New Jersey Manufacturers Insurance Company ("NJM"), for 25% of partial total, or 105 weeks of compensation, in August 2002, but that NJM subsequently claimed that the adjuster did not have authority to settle the case. Nothing was put on the record at the time of the alleged settlement or for some time thereafter. The judge of compensation ultimately determined that, because the issue of settlement was not raised until after the evidentiary hearing was completed, the matter was moot and enforcement was denied. The court then awarded 15% of permanent partial disability for "residuals of bilateral carpal tunnel syndrome."

According to a certification of petitioner's counsel, petitioner came to court in August 2002 to put the settlement on the record, but respondent's attorney "had to leave early," and nothing was placed on the record that day. When petitioner returned to court on September 17, 2002, NJM's counsel "advised us that the case was not settled and the adjuster did not have authority to settle the case."

Proceedings occurred after the alleged August 2002 settlement - on November 19, 2002, September 30, 2003, December 2, 2003 (when petitioner's case-in-chief was completed), and February 3, 2004, prior to hearing the settlement enforcement application of June 29, 2004. In June 2004, the judge of compensation set out the procedural history of the litigation, indicating that "petitioner's counsel first attempted to move as to an alleged settlement at the conclusion of petitioner's case [in December 2003] after the Court had heard from petitioner along with petitioner's two medical experts," but filed no papers at the time. As further developed at the June 29, 2004 hearing, the judge had indicated at the February 3, 2004 hearing that no papers had been filed as of that date, despite the request by the court in December 2003.

In any event, at the February hearing, petitioner was given one more week to file a certification in support of the enforcement application. The certification was filed on February 10, 2004. On June 29, 2004, after review of the certification and cross certification from respondent's counsel, the judge ruled:

Here, the facts are undisputed that the Court never participated in nor was in any way privy to any settlement discussions concerning the instant matter. Accordingly, since the Court did not approve nor even ha[ve] knowledge of any proposed settlement in this matter, and given the fact petitioner's motion was filed after the conclusion of all the lay and medical testimony in the case, the Court finds the motion moot and improper under [Division rules] and, therefore, [it] is accordingly denied. If the Court were to hold otherwise, then the Court would be functioning as a mere rubber stamp which is clearly not the intent of the Legislature. As the Court has heard this case, justice is best served by the Court proceeding to a decision on the merits.

The court subsequently filed its reserved decision on the merits.

 
We affirm the denial of the enforcement application substantially for the reasons stated by Judge Leslie Adams Berich in her oral opinion of June 29, 2004. In particular, we agree with the conclusion that any endeavor to dispose of the matter by enforcement of a settlement, or without a contested case hearing, should have been presented to the court before the hearing was commenced.

Affirmed.

The certification of petitioner's counsel was dated February 10, 2004. A responding certification, to the effect that "[t]he adjuster has ability to make an offer subject to attorney approval," but that counsel "did not approve the settlement upon reviewing all aspects of the case," was dated May 7, 2004.

(continued)

(continued)

4

A-2015-04T3

March 29, 2006