JOHN K. DEVER v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN K. DEVER,

Plaintiff-Respondent/

Cross-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Appellant/

Cross-Respondent.

_______________________________

October 23, 2013

 

 

Before Judges Lihotz, Maven and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3027-09.

 

Robert M. Kaplan argued the cause for appellant/cross-respondent (Margolis Edelstein, attorneys; Mr. Kaplan and Michelle L. Hodak, on the briefs).

 

Lars S. Hyberg argued the cause for respondent/cross-appellant (McAllister, Hyberg, White, Cohen & Mann, attorneys; Mr. Hyberg, on the brief).

 

PER CURIAM

The parties filed cross-appeals from a jury verdict rendered in this automobile negligence action. Because liability was not disputed, trial evidence was limited to causation and damages. The jury found plaintiff John K. Dever had not suffered a permanent injury as a result of the motor vehicle collision, but awarded lost wages of $275,000. Both sides filed post-judgment motions challenging different aspects of the verdict. The judge determined plaintiff was entitled to reimbursement for unpaid medical bills, but otherwise denied the motions.

Defendant New Jersey Manufacturers Insurance Company (NJM) argues the trial judge erred in denying its motion for a new trial or, in the alternative, remittitur, contending the amount of the damage award was not supported by the evidence. Defendant also challenges as erroneous the order reimbursing plaintiff for the amount of a claimed workers' compensation lien for medical bills. Plaintiff's cross-appeal maintains the judge erred in denying his motion for a judgment notwithstanding the verdict (JNOV), seeking to set aside the jury's permanent injury finding. Following our review, we affirm the jury verdict, but reverse the order granting reimbursement of plaintiff's previously paid medical bills.

These facts are found in the trial record. On January 3, 2000, plaintiff, an on-duty Atlantic City police officer, suffered injuries when his police vehicle was struck by a vehicle driven by Alice Turner. Turner ran a red light and collided with plaintiff's vehicle, which had entered the intersection at a speed of twenty-five miles per hour. Turner's car was badly damaged and the force of impact turned plaintiff's vehicle at a forty-five degree angle, causing damage to the driver's side front quarter panel from the wheel well to the front fender. Plaintiff was wearing his seatbelt. He sustained no cuts, abrasions, lacerations or broken bones, and was taken to a near-by emergency room to address complaints of neck and lower back pain and an ache in his right hand. No diagnostic tests were performed and he was released.

With defendant's permission, plaintiff settled his claims against Turner, whose automobile liability carrier tendered her $25,000 policy limits. Plaintiff then filed a claim under his underinsured motorist (UIM) policy, issued by defendant. At trial, the parties stipulated liability, premised on plaintiff's agreement to cap damages within the policy's $500,000 limits, as reduced by Turner's payment.

Trial testimony concentrated on the extent and nature of plaintiff's injuries and resultant damages. Plaintiff described his background, his service as a Marine, and the events leading to his hiring by the police force. He described his various employment duties working in the department's detective bureau, SWAT team, and vice squad.

Next, he detailed the accident, its resultant effects and his medical treatment. Police surgeon Dr. Kuponiyi first treated plaintiff, ordering a cervical MRI, which revealed an irregularity in plaintiff's cervical discs. Dr. Kuponiyi referred plaintiff to Andrew Glass, M.D, a neurosurgeon, who began treatment for what he diagnosed as a C4-5 cervical disc protrusion. At trial, plaintiff admitted his back pain had been satisfactorily resolved. However, his neck pain remained and the use of his right hand was compromised, noting he often dropped things. Plaintiff was right-handed, making his use of a weapon in that hand unreliable. Consequently, he was determined to be disabled and placed on disability retirement.

Plaintiff also described the emotional withdrawal he experienced after the accident, which he later learned was depression. He explained for years he would not socialize with or call people. He was uninterested in things, watched television for hours, and would not leave his house unless he was forced to, except to go fishing alone. He stated it might take him three days of trying to go to the grocery store. When he began psychiatric treatment, he gradually began conversing with other fisherman and slowly began to reconnect with people.

Plaintiff described his return to school, taking courses in welding and diesel mechanics. Following the required 100 hours of welding, plaintiff applied for employment as a welder. He was able to weld for four to six hours at a time. He also returned to many everyday activities. Over the years, plaintiff painted the interior of his home, continued to work on his car, and maintained his lawn. He enjoyed surf fishing for four to six hours at a time, which he did almost every day in season. He also resumed spending time with his friends.

Plaintiff was under Dr. Glass's medical care for five sessions, beginning on January 28 and ending on May 9, 2000. The jury watched the video deposition of Dr. Glass, during which he discussed his diagnosis of plaintiff's condition.1 Dr. Glass opined the accident caused the disc between plaintiff's fourth and fifth cervical vertebrae to become displaced, resulting in pain and stiffness in his neck, right arm and hand, as well as the lower back. He referred plaintiff for nine weeks of physical therapy and pain management, which included one analgesic neck injection. Plaintiff's lower back problems were resolved; however, his neck pain and the effect on the use of his right hand persisted. Dr. Glass suggested plaintiff was not a viable surgical candidate, reporting he felt plaintiff had achieved "maximum medical improvement" for his neck pain and could obtain no additional curative gain from continuing a treatment regimen. Accordingly, Dr. Glass opined plaintiff was permanently injured and could not return to work as a police officer unless he solely worked in a "sedentary capacity."

Based on Dr. Glass's medical diagnosis and prognosis, plaintiff applied for an accidental disability retirement pension, which the New Jersey Department of Pension and Benefits (NJDOPB) awarded, effective January 1, 2001. Dr. Glass performed a final examination of plaintiff on January 15, 2004. Plaintiff continued to complain of neck and arm pain and Dr. Glass observed plaintiff's "significant loss of range of motion" persisted.

Atlantic City Police Captain Eric Dooley testified plaintiff was forced into early retirement because his injury precluded him from performing his normal duties as an officer and permanent light duty positions were not available in the department. Captain Dooley was plaintiff's best friend spoke of his personality as a "solid individual," "well rounded," "very outgoing," and "dynamic." He stated plaintiff was a good police officer, who received recognition and commendations for his performance, and who absolutely enjoyed his work. Following the accident, when plaintiff was told he could no longer be a police officer, Captain Dooley saw plaintiff undergo emotional changes, "close down," generally withdraw from social interactions, and "be[come] totally disengaged with everyone and everything."

Captain Dooley also discussed his observations of plaintiff's physical and emotional improvement over the years. Although he believed plaintiff was "not the same," Captain Dooley knew plaintiff lifted lighter weights and regularly engaged in abdominal workouts, went fishing, painted his house, attended welding classes, rotated his tires, shared driving responsibilities on trips to Florida and Indianapolis, mowed his lawn, used a snow blower, and learned to play golf.

On January 23, 2005, plaintiff consulted with psychiatrist Gary Glass, M.D.2 At trial, Dr. Glass explained the nature of his psychiatric treatment and sessions with plaintiff. Following his initial examination, Dr. Glass diagnosed plaintiff's condition as major depression and dysthymia,3 "which arose as a result of his accident and the end of his career as a police officer." Dr. Glass explained "depression doesn't come on all at once and depression doesn't go away all at once." He opined plaintiff's accident-related, career ending injuries, coupled with plaintiff's loss of identity as a police officer, caused his depressive disorder.

With regular treatment over two years, which entailed medication, psychotherapy, and social engineering, plaintiff's condition was sufficiently under control by 2007, so that he was able to establish a new career and resume employment. Dr. Glass ended psychiatric treatment in the winter of 2007 and formally discharged plaintiff on October 29, 2010.

The defense presented testimony from Dr. Ronald Gerson, an orthopedic expert, who reviewed plaintiff's medical records, comprised of MRI films, myelogram films, a post-myelogram CAT scan, and an electromyogram of plaintiff's neck and back and conducted an independent medical examination in 2003 and again in 2008. Dr. Gerson disputed the permanency of plaintiff's injury, stating his review of plaintiff's MRI revealed only a bone spur between plaintiff's fourth and fifth vertebrae, not a protrusion. He characterized a bone spur as a commonplace degenerative condition, and stated the spurs predated and were unrelated to plaintiff's accident, because bone spurs "don't grow overnight." In his view, Dr. Gerson found the accident caused plaintiff to suffer only temporary sprains and strains in his neck and back, which were treated routinely by physical therapy. He further opined plaintiff's arm and hand discomfort were unrelated to the accident or the bone spur, stating the spur did not impinge on any nerves. Dr. Gerson suggested plaintiff's temporary conditions were completely resolved when he ceased treatment in May 2000.

Defense psychiatrist, Dr. James Hewitt, whose video deposition was played for the jury, examined plaintiff on March 23, 2007. Prior to his examination, he reviewed Dr. Gary Glass's report on plaintiff's psychiatric treatment and upon completion of the examination, agreed with Dr. Glass's assessment that plaintiff exhibited symptoms of major depression in 2005. However, Dr. Hewitt opined plaintiff's depression was fully resolved requiring no further treatment.

Plaintiff also produced evidence of damages through the video deposition testimony of Robert Wolf, Ph.D., a vocational and economic analysis expert. Dr. Wolf, in addition to interviewing plaintiff, reviewed plaintiff's W-2 records, his Atlantic City Police Department employment contract, and pension records. From this information, Dr. Wolf computed plaintiff's future wage loss over the fifteen year period beginning in 2000, the year of the accident, to 2015, the year plaintiff was originally projected to retire. Dr. Wolf asserted lost wages and benefits amounted to $973,054, which, when reduced to present value, were equivalent to $634,559, or approximately $42,000 per year. Dr. Wolf's report contained summary tables 1 and 2, detailing his determination of plaintiff's pre-injury expected earnings and post-injury actual and expected earnings. These summaries were entered into evidence over defendant's objection.

James Pascuiti, the defense employability expert, refuted Dr. Wolf's opinion following his 2004 evaluation. Pascuiti described many available jobs he found plaintiff was capable of performing despite his accident. Pascuiti suggested the median rate of pay of these positions was approximately $35,000, which, when added to plaintiff's disability pension, would compensate for his lost police officer's salary. However, Pascuiti admitted his opinion did not consider plaintiff's psychiatric condition.

The judge instructed the jury and provided them with a questionnaire to be completed when rendering its verdict. The jurors unanimously determined plaintiff had not proven he sustained a permanent injury and awarded him $275,000 as compensation for his economic loss, defined as "the lost earnings suffered by the plaintiff during a reasonable period of recuperation and recovery" resulting from his injuries. Following the denial of post-judgment motions, the parties filed these cross-appeals.

Both parties attack as error the judge's denial of their respective post-judgment motions challenging the verdict. We examine their claims.

Defendant contends the trial judge erred in denying its motion for a new trial or remittitur, suggesting the jury award clearly overcompensated plaintiff for what were shown to be temporary injuries. Defendant maintains the $275,000 award represents a four-year period of recuperation, which defendant asserts is inconsistent with the testimonial evidence establishing plaintiff underwent minimal medical treatment ending in May 2000.

As a general rule, our judicial framework accepts that there is a presumption of correctness in jury verdicts. Baxter v. Fairmont Food Co., 74 N.J.588, 598 (1977). Pursuant to Rule 4:49-1(a), a party is entitled to a new trial to correct clear errors or mistakes of the jury, "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." See alsoJohnson v. Scaccetti, 192 N.J.256, 280 (2007); Caldwell v. Haynes, 136 N.J.422, 431 (1994); Baxter, supra, 74 N.J.at 596. Accordingly, a trial court should only disturb a jury's damage award when it is "so disproportionate to the injury and resulting disability as to shock the conscience." Baxter, supra, 74 N.J. at 604.

A judge reviewing whether a verdict constitutes a miscarriage of justice must "view the evidence in the light most favorable to the party opposing the motion for relief[,]" Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010), and "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). In performing this function, atrial judge may not substitute his or her judgment for the jury's merely because he or she would have reached a different conclusion. Ibid.

It is also clear a court's "authority to set aside damages awards on grounds of excessiveness is 'limited,'" Jastram v. Kruse, 197 N.J. 216, 228 (2008) (quoting Carey v. Lovett, 132 N.J. 44, 66 (1993)). The principal goal of damage awards is to fairly compensate an injured party. He v. Miller, 207 N.J. 230, 249 (2011). In assessing a jury's award of damages, the court's role must ensure the verdict "encompasses no more than the amount that will make the plaintiff whole, that is, the actual loss." Caldwell, supra, 136 N.J. at 433. Verdicts should be set aside only "in clear cases." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970).

In our review of a trial judge's decision to grant or deny a new trial, we consider whether there was a miscarriage of justice under the law. Bender v. Adelson, 187 N.J. 411, 435 (2006); Jastram, supra, 197 N.J. at 230; see also R. 2:10-2. We will not set aside a jury verdict and order a new trial unless we are firmly convinced that there has been a manifest injustice. See Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Kozma, supra, 412 N.J. Super. at 324-25.

Similarly, "[t]he power of remittitur is not to be exercised lightly . . . because we repose enormous faith in the ability of juries to equate damages with dollars to 'make the plaintiff whole, so far as money can do.'" He, supra, 207 N.J. at 248 (citation omitted). Rather, "the decision to order a remittitur must spring from an overriding sense of injustice, a shock to the court's conscience, a certain and abiding belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable and appropriate." Id. at 252. The determination should be made by viewing the totality of the evidence in the light most favorable to the party opposing the motion for relief, deferring as we must to the trial judge's "feel of the case," with regard to the assessment of intangibles. Jastram, supra, 197 N.J. at 220 n.2, 230 (citations and internal quotation marks omitted).

Guided by these standards, we cannot conclude the evidence presented in this matter was so one-sided as to compel a conclusion the verdict was incorrect or excessive, warranting a new trial or remittitur. Our review determines the jury clearly understood the nature of plaintiff's medical infirmities resulting from the accident and were fully instructed on their obligation to weigh the credibility of all testimony.

The record contains substantial evidence to support the jury's finding plaintiff recovered physically from the injuries caused by the accident after minimal treatment, but suffered longstanding depression for years after the accident, which impeding his resumption of employment or participation in things he had enjoyed. The jury was provided with the Pension Board's determination plaintiff could no longer perform the physical responsibilities required of a police officer as well as the testimonial evidence of the witnesses and experts. Plaintiff candidly described his symptoms of withdrawal, inability to function, indecisiveness, lack of concentration, social disinterest, and general malaise, all of which was supported by Captain Dooley. Both experts confirmed plaintiff's condition and its effects. Dr. Gary Glass, whom the judge found "compelling, very persuasive," supported plaintiff's testimony, and his diagnosis was not refuted by Dr. Hewitt, who also found plaintiff suffered from symptoms of major depression.

Finally, Expert testimony supported the quantum of damages regarding loss of wages and benefits over the period of 2001 to 2007. Dr. Wolf and Pascuiti quantified plaintiff's salary and the value of his benefits provided as a police officer. Although Pascuiti asserted plaintiff could have obtained employment in 2004, he admitted he did not consider plaintiff's mental condition, which remained unabated until 2007.

Based on the totality of the evidence in what the trial judge characterized as "a rather unique set of facts," the jury's conclusion plaintiff's depression so disrupted his ability to obtain and retain employment, was supported and justified compensation during what it found was a reasonable period of recuperation. Understanding our system of justice presumes the correctness of a jury verdict, we cannot find clear and convincing evidence demonstrating a miscarriage of justice, R. 4:49-1(a), that requires we disturb the jury's verdict. Further, the lost wage award is not "so disproportionate to the injury and resulting disability as to shock the conscience." Baxter, supra, 74 N.J. at 604.

Next, defendant challenges the admission of Dr. Wolf's summaries, over its objection. In deciding to admit the summary evidence, the trial judge reasoned the jury would benefit from a visual representation of Dr. Wolf's testimony, which was heavily laden with numbers and complicated mathematical computations. To avoid undue emphasis, the judge required the chart be presented on "regular paper," not large tablets as displayed during Dr. Wolf's testimony.

Defendant believes admission of the summaries prejudicially influenced jury deliberations because the award is "nearly identical to the four years of pre-injury expected earnings from 2001-2004 as set forth" on the exhibits. Defendant suggests Dr. Wolf's testimony related the information, making provision of the summaries to the jury unnecessary and an abuse of discretion. We disagree.

Admission of summary evidence under N.J.R.E. 1006 rests with the sound discretion of the trial judge.4 See Fried v. Aftec, 246 N.J. Super. 245, 251 n.3 (App. Div. 1991) (stating trial judge "from his unique perspective at the trial" has discretion to determine whether a summary aids the jury or would over-emphasize a particular witness's testimony if admitted into evidence).

Here, the judge properly weighed the possible prejudicial effect of admitting the evidence, N.J.R.E. 403, and although finding it a "close call," ultimately decided the complexity of the Dr. Wolf's testimony necessitated admission of the summary aid. Defendant offers no support for the assertion of undue influence upon the verdict. Indeed, the judge limited the impact of the summaries by requiring reduction to the size of a sheet of paper and by instructing the jury on its limited use. Further, the judge told the jury it was free to accept or reject Dr. Wolf's calculations, including each summary. Defendant offers no basis to suggest these instructions were deficient or not followed. Accordingly, we find no abuse of discretion.

Defendant's final argument relates to the reimbursement of plaintiff's medical expenses. Plaintiff's injury occurred in the course of his employment and he filed a workers' compensation claim. The workers' compensation carrier paid all medical bills and we are told placed a lien on plaintiff's recovery from the tortfeasor. The record does not disclose whether the workers' compensation carrier was paid $8,482.11 from plaintiff's settlement with Turner. Following the verdict, plaintiff moved for defendant to pay this sum maintaining he should not be forced to absorb his own medical expenses. The trial judge agreed.

Defendant urges reversal of that decision, arguing plaintiff is statutorily precluded from recovering medical expenses from defendant which stands in the shoes of the tortfeasor, making the order for reimbursement is erroneous. Noting there are three possible sources of recovery personal injury protection (PIP), workers' compensation, and the tortfeasor we examine the applicable statutes to determine from whom plaintiff has a right to collect payment of his medical expenses and the designated priority for payment by the possible sources.

We start with examination of certain provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, which address this issue. Under New Jersey's system of no-fault automobile insurance, every automobile insurance policy must provide PIP benefits "for the payment of medical expenses to the insured . . . who suffer[s] bodily injury in an automobile accident." Zabilowicz v. Kelsey, 200 N.J. 507, 509 (2009) (citing N.J.S.A. 39:6A-4, -3.1(a), -3.3(b)(1)). "Those medical benefits are paid without regard to who caused the accident, giving rise to the moniker 'no-fault' insurance." Ibid. (citing Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004)).

"[T]he entire thrust behind the passage of AICRA was to reduce the number of litigated claims and, thus, to bring stability to automobile insurance premiums." James v. Torres, 354 N.J. Super. 586, 594 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). AICRA includes restrictions on initiating certain legal actions. Specifically, AICRA prohibits claims for medical expenses available under the injured insured's own PIP policy provisions, N.J.S.A. 39:6a-8(a)(1). This results because the statutory concept of a no-fault insurance system "was 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, supra, 178 N.J. at 466-67 (citing Roig v. Kelsey, 135 N.J. 500, 503, 511-12 (1994)). An "injured person who was the beneficiary of the PIP payments could not and should not recover from the tortfeasor the medical, hospital and other losses for which he had already been reimbursed." Bardis v. First Trenton Ins. Co., 199 N.J. 265, 278-79 (2009) (quoting Cirellki v. Ohio Cas. Ins. Co., 72 N.J. 380, 387 (1997)).

Other provisions also limit litigation regarding an injured insured's medical expenses otherwise payable pursuant to the policy's PIP coverage provisions. N.J.S.A. 39:6A-12, which pre-dated AICRA, but as amended continues to specifically preclude introduction of "evidence of the amounts collectible or paid under a standard automobile insurance policy" of PIP benefits (emphasis added). In Roig, supra, a pre-AICRA case, the Court construed N.J.S.A. 39:6A-12 to bar reimbursement of PIP deductible amounts and co-payments, reasoning that the Legislature did not intend "to leave the door open for fault-based suits when enacting the No-Fault Law." 135 N.J. at 516. The Legislature amended the provision to reflect this interpretation. D'Aloia v. Georges, 372 N.J. Super. 246, 249 (App. Div. 2004), certif. denied, 182 N.J. 428 (2005). We emphasize this is a key provision in our no-fault legislation, designed to reduce costs by eliminating from the court system minor automobile negligence cases between an injured party and the tortfeasor. See Roig, supra, 135 N.J. at 514 (1994) (holding that concluding permitting lawsuits to recover PIP copayments and deductibles would be contrary to auto insurance legislative goals); D'Aloia, supra, 372 N.J. Super. at 251 (same).

We also understand the Legislature had no intention to interpret N.J.S.A. 39:6A-12 to preclude a victim in an automobile accident from recovering uncompensated economic losses from a tortfeasor. AICRA added N.J.S.A. 39:6A-2(k), which defines "economic loss" to specifically include "uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses." In this way, the Legislature intended to allow recovery of medical expenses for which an accident victim has not been otherwise compensated. D'Aloia, supra, 372 N.J. Super. at 250.

In this case, both plaintiff and Turner owned and operated motor vehicles registered or principally garaged in New Jersey and were covered under New Jersey no-fault insurance policies. Plaintiff's injuries were compensable under his policy's PIP benefits. However, plaintiff did not seek, and defendant was not requested to issue medical expense payments under the PIP provisions of the policy because plaintiff suffered injuries while in the course of his employment, therefore, triggering the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127. See N.J.S.A. 34:15-15 (mandating an employer must furnish medical care to an injured worker).

When an employee suffers a work-related injury in an automobile accident, workers' compensation is the primary source of satisfaction of plaintiff's medical bills under the collateral source rule, N.J.S.A. 39:6A-6. N.J.S.A. 39:6A-6 "relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers' compensation benefits."5 Lefkin v. Venturini, 229 N.J. Super. 1, 7 (App. Div. 1988). See also Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550, 566 (1981) (holding the Legislature has expressly provided that PIP payments shall be reduced by collectible workers' compensation benefits). Certainly, had plaintiff only collected PIP benefits, defendant could have recovered reimbursement of those payments from the employer's workers' compensation carrier. Cont'l Ins. Co. v. McClelland, 288 N.J. Super. 185, 189 (App. Div. 1996); N.J.S.A. 39:6A-6.

In instances where an employee, as a result of a work related injury, also had a claim for recovery against a third party, the Legislature overcame the possible "inequity of double recovery" by including N.J.S.A. 34:15-40 (section 40). Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590, 597 (1995). N.J.S.A. 34:15-40(b)6 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, supra, 142 N.J. at 598.

Section 40 has been found to require reimbursement when an employee obtains a recovery from his or her UIM carrier as a result of third-party liability. Midland Ins. Co. v. Colatrella, 102 N.J. 612, 616-18 (1986). This results because the UIM payments are "the functional equivalent of a recovery from the actual third-party tortfeasor." Frazier, supra, 142 N.J. at 598; see also Colatrella, supra, 102 N.J. at 617 (stating "an uninsured motorist provision is a contractual substitute for a tort action against an uninsured motorist"). See also Eger v. E. I. du Pont de Nemours Co., 110 N.J. 133, 144 (1988) ("[T]he primary concern of the Legislature in enacting the reimbursement provisions of N.J.S.A. 34:15-40 was to integrate all available sources of recovery in order to prevent double recovery on the part of an employee having both a statutory right to compensation and an action in tort against a third-party wrongdoer.").

We are required to read statutes in pari materia, so that provisions relating to the same matter or subject are construed together as a unitary and harmonious whole, to assure each is fully effective, Marino v. Marino, 200 N.J. 315, 330 (2009). Accordingly, we conclude the medical expenses incurred in plaintiff's work related accident are not payable from the UIM carrier. This results because an insured's recovery against his or her UIM carrier represents the "contractual substitute for a tort action against an uninsured motorist[,]" Colatrella, supra, 102 N.J. at 617, and because a New Jersey no-fault insured cannot recover medical expenses provided for under the PIP provisions from a tortfeasor's New Jersey no-fault policy. Thus, there is no recovery of medical benefits between New Jersey no-fault insureds.

Also, the Legislature has decreed workers' compensation insurance must be the primary source of payment for work-related automobile injuries, and the cost of the employee's medical expenses is born by the worker's compensation carrier not the PIP insurance carrier. Therefore, a Section 40 lien, which attaches only to permitted tortfeasor recoveries, cannot include medical expenses from a New Jersey no-fault insured; there is no right to recover such expenses. Patterson v. Adventure Trails, 364 N.J. Super. 444, 448-49 (Law Div. 2003). Allowing reimbursement to a workers' compensation carrier from an employee's UIM carrier is counter to the legislative intent of this express statutory reimbursement scheme.

The record is not clear as to whether the workers' compensation carrier invoked its lien against the $25,000 recovery from Turner. We conclude such action would be inappropriate. Under these facts, plaintiff's medical expenses are the responsibility of the workers' compensation carrier and are not reimbursable by defendant. The trial court's decision is reversed and the order for defendant to pay $8,482.11 representing plaintiff's medical bills is vacated.

We turn to the cross-appeal, noting many of plaintiff's arguments focus on whether plaintiff's evidence was sufficient to prove he suffered a permanent injury resulting in an entitlement to noneconomic damages and whether the court erred in limiting his economic loss. In this regard, his arguments include: (1) the verdict sheet incorrectly limited economic losses, precluding recovery for future wage losses; (2) the judge erred in denying his request for an instruction, giving deference to the accidental disability award by NJDOPB as a conclusive finding or as creating a rebuttable presumption of disability; and (3) the judge erroneously denied his motion for JNOV. Following our review, we determine a new trial is unnecessary. Consequently, we decline to address those defensive arguments related to possible retrial of this action, presented in Points VI and VIII of plaintiff's merits brief.

Plaintiff also asserts the verdict sheet erroneously confined his economic loss to wages lost during "a reasonable period of recuperation and recovery," essentially curtailing the future lost wages award. Plaintiff argues this language contravenes N.J.S.A. 39:6A-8, which he asserts places no limitation on recovery of economic losses regardless of the permanency of the injury. Plaintiff suggests the verdict sheet ignored his lost wage claim resulting from "reduced earning[] capacity" when he was forced to leave the police force. We are not persuaded.

A plaintiff's claim for future lost wages must be supported by both: (1) "a reasonable probability" of such a loss flowing from the past harm; and (2) "sufficient factual matter upon which the quantum of diminishment can reasonably be determined." Coll v. Sherry, 29 N.J. 166, 176 (1959). The mere possibility of lost earning capacity is insufficient. Lesniak v. Cnty of Bergen, 117 N.J. 12, 24 (1989).

Important here is plaintiff's case presented claims of permanent injury. Understanding he had elected the limitation on liability option on his automobile insurance policy, plaintiff was precluded from recovery of noneconomic loss absent proof of "a bodily injury which result[ed] in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). Although this limitation does not affect claims for economic loss, such as lost wages, N.J.S.A. 39:6A-2(k), "we have also recognized that if a plaintiff fails to prove a 'permanent injury,' there must be a limit upon any award made for future economic loss." Haywood v. Harris, 414 N.J. Super. 204, 212 (App. Div.), certif. denied, 204 N.J. 38 (2010). In other words, "where the claim is based on a permanent injury within the meaning of N.J.S.A. 39:6A-8(a), there must be a 'permanent injury' to sustain recovery beyond wages lost during a reasonable period of recuperation and recovery." (emphasis in opinion). Ibid. (quoting Miskelly v. Lorence, 380 N.J. Super. 574, 578 (App. Div.), certif. denied, 185 N.J. 597 (2005)).

In this matter, the trial judge followed Haywood's guidance and understood "'future lost wages may be deemed appropriate for a period of time even though the injury is not deemed to be "permanent" within the meaning of N.J.S.A. 39:6A-8(a).'" Ibid. (quoting Miskelly, supra, 380 N.J. Super. at 579 n.3). We conclude the court's jury instructions and the corresponding verdict sheet properly reflected the jury's responsibility to limit lost wages to a period of recuperation and recovery. Id. at 218-19.

Arguably, plaintiff proved he was no longer able to work as a police officer. Further, he fully aired his proofs, attempting to show he would lose wages throughout his career by offering Dr. Wolf's projected income estimates through 2015. On the other hand, the evidence included plaintiff's ability to perform physical activities, including welding and automobile repairs, and that was able to work as a welder. We have no doubt the jurors weighed all of these proofs, concluded plaintiff did not suffer a permanent injury, and computed an appropriate remedy to compensate plaintiff for his determined loss.

We also reject as unfounded plaintiff's argument the court should have instructed the jury the NJDOPB's disability determination was conclusive evidence of his permanent disability or, alternatively, that the determination raised a rebuttable presumption of disability. The authorities plaintiff cites for this proposition are legally and factually distinguishable, and principally address a state court's obligation to accept as rebuttable a finding of disability by the Social Security Administration when considering whether a party can work to pay child support. Golian v. Golian, 344 N.J. Super. 337, 341, 343 (App. Div. 2001). Here, plaintiff failed to present the basis for the NJDOPB award, making it impossible to understand the underlying foundation for issuing the award. We find no error in the judge's determination to admit into evidence the NJDOPB's award letter approving plaintiff's application for disability retirement, but to plaintiff's request to direct a conclusion from the evidence.

Finally, plaintiff maintains the judge incorrectly denied his motion for JNOV on the issue of whether he suffered a permanent injury. Suggesting defense medical expert Dr. Gerson was biased, plaintiff contends Dr. Gerson's view that plaintiff did not suffer from a cervical disc protrusion was unfounded and mere "opinion."

When considering a motion for JNOV, a trial court views the facts in the light most favorable to the non-moving party and accords to the non-moving party all reasonable inferences drawn from those facts. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 180 (2011). In our review of the trial court's denial of its motion for JNOV, we employ the same standard. Besler v. Bd. of Educ. of West Windsor-Plainsboro Regional Sch., 201 N.J. 554, 556 (2010).

Viewing the evidence in this light, we conclude, as did the trial judge, the jury had ample evidence to conclude plaintiff did not sustain permanent injuries resulting from the automobile accident. As we addressed above, plaintiff regularly performed physical activity, including welding for numerous hours each day, fishing, painting, and automobile maintenance. Further, the jurors watched plaintiff throughout the lengthy trial and heard him testify, observing and assessing plaintiff's credibility. No error resulted in the denial of plaintiff's motion.

In summary, we affirm the jury's verdict, challenged on appeal and cross-appeal in all respects. However, we reverse the post-judgment order awarding plaintiff reimbursement of his medical expenses from defendant. We remand for correction of the final judgment to delete this obligation.

Affirmed in part, reversed in part, and remanded for correction of the final judgment.

1 The record contains the transcript of Dr. Glass's video deposition, as well as the other video depositions mentioned.

2 There is no familial relation between Dr. Andrew Glass and Dr. Gary Glass.

3 Dysthymia, also known as Persistent Depressive Disorder, is described in 300.4 of the Diagnostic and Statistical Manual of Mental Disorders as: "[d]epressed mood for most of the day, for more days than not, as indicated either by subjective account or observation by others, for at least 2 years." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 300.4, 168 (5th ed. 2013).

4 N.J.R.E. 1006 states in pertinent part:

The contents of voluminous writings or photographs which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation.

5 N.J.S.A. 39:6A-6 provides:

 

[M]edical expense benefits . . . shall be payable as loss accrues, upon written notice of such loss and without regard to collateral sources, except that benefits, collectible under workers' compensation insurance, . . . shall be deducted from the benefits collectible [under PIP] . . . .

 

If an insurer has paid [PIP] benefits and the insured is entitled to, but has failed to apply for, workers' compensation benefits . . . the insurer may immediately apply to the provider of workers' compensation benefits . . . for a reimbursement of any . . . medical expense benefits [paid by PIP].

[(emphasis added)].

6 N.J.S.A. 34:15-40(b) provides in pertinent part:

If the sum recovered by the employee . . . from the third person or his insurance carrier is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, . . . for the medical expenses incurred . . . paid to the injured employee[.]