B E F O RE:  HONORABLE PHILIP A. TORNETTA
                                                  JUDGE OF COMPENSATION

                           A P P E A R A N C E S:

                                                  FLORIO & KENNY
                                                  BY: EDWARD J. FLORIO, ESQ.
                                                  ATTORNEY FOR PETITIONER

                                                   BIANCAMANO & Di STEFANO
                                                   BY: MATTHEW GITTERMAN, ESQ.
                                                   ATTORNEY FOR RESPONDENT

Introduction

            This matter comes before the court by way of Notice of Motion of the  respondent, P.I.E. Nationwide ( “P.I.E.”) / New Jersey Self Insurers Guaranty Association ( “Association”) ,  both collectively hereinafter referred to as “respondent”, for an order dismissing the Application for Review or Modification of Formal Award (“Application for Review ”) of petitioner, Michael Collins, (  “petitioner”).

           Petitioner filed his Application for Review in or about May 24, 1994 seeking a review of an Order Approving Settlement  entered on May 21, 1992 in which petitioner was awarded 60%  of partial permanent disability of the statutory left arm for residuals of  ulnar neuropathy and degenerative changes.  On December 31, 2001, petitioner filed a verified petition to join the Second Injury Fund. On November 17, 2009, respondent filed a motion to dismiss the Application for Review   pursuant to the provisions of   N.J.S.A. 34:15-120.19a. Petitioner filed an opposition to  the  motion on February 16, 2010.

           Oral argument was   held on April 20, 2011.  Both parties have submitted to the court   briefs  in support of their respective positions.

Facts

 
           It has been stipulated by the parties that   petitioner suffered a compensable accident arising out of  and in the course of his employment by P.I.E. on December 1,  1989.  On October 16, 1990,  P.I.E.   filed  for bankruptcy protection. It was further stipulated that payment of the May 21, 1992  award of  compensation was made to petitioner.  However, the parties disagree as to whether the security deposit previously paid by P.I.E. to the New Jersey Department of Banking and Insurance, which has since been exhausted,  was utilized to pay the  award   or whether the payment was made by  the Association in error.  

           Under N.J.S.A. 34:15-120.16, which became effective on April 16, 1993,  the legislature created a non-profit entity to be known as the New Jersey Self Insurers Guaranty Association. All self-insurers were required to be members of the association as a condition of their authority to self insure in the State of New Jersey.

          N.J.S.A. 34:15-120.15 defines a self-insurer as an employer ,  other than a governmental entity, which self-insures for the purposes of workers’ compensation. Member is defined as a self-insurer which is a member of the association.

           Under N.J.S.A. 34:15-120.19 there was created an Insolvency Fund for the purpose of meeting the obligations of insolvent members incurred while members of the association after exhaustion of any bond as required under chapter 15 of Title 34 of the Revised Statutes.  

           N.J.S.A. 34:15-120.15 defines an insolvent member as a member employer which files for relief in bankruptcy under Title 11 of the United States Code.

           Pursuant to N.J.S.A. 34:15-120.18a , upon creation of the Insolvency Fund, the association is obligated for payment of compensation under chapter 15 of Title 34 of the Revised statutes to insolvent members’ employees resulting from: (1) incidents and injuries existing prior to the member becoming an insolvent member; and (2) incidents and injuries occurring after the member has become an insolvent member.

          Under N.J.S.A. 34:15-120.29, the association shall be obligated for payment of compensation under chapter 15 of Title 34 of the Revised Statutes to the employees of any self-insured declared to be insolvent by a court of competent jurisdiction on or after October 1, 1990, but prior to the effective date of this act, as if that self-insurer were an insolvent  member subject to the provisions of this act.  This in effect made N.J.S.A. 34:15-120.18 retroactive to October 1, 1990.

Respondent’s Argument

           Respondent’s  position is that the Association did not come into being until April 16, 1993, retroactive to October1, 1990.  Since the Insolvency Fund was created for the purpose of meeting the obligations of insolvent members incurred while members of the Association and  the accident which caused petitioner’s injury occurred on December 1, 1989,  before  P.I.E. was a member of the Association, petitioner is not entitled to benefits from the Association and the Application for Review should be dismissed.

Petitioner’s Argument

           Petitioner first argues that since payment of  petitioner’s workers’ compensation award of  May 21, 1992 was made by the Association, the doctrines of collateral estoppel and res judicata  prohibit respondent from arguing for dismissal of the Application for Review.

           Petitioner next argues that the  legislative history of  the relevant statutes supports his position that the intent of the legislature in adopting the statutes was that a person injured prior to October 1, 1990 would be eligible for  payment of workers’ compensation benefits by the Association.

Decision 

           There are important goals to be achieved from the prudent and selective application in administrative proceedings of such doctrines as res judicata, collateral estoppel, and the single controversy rule. City of Hackensack v. Winner, 82  N.J. 1, 31 (1980).  However, the Workers’ Compensation Court is an administrative court, not a constitutional court. Its jurisdiction is limited to that granted by the legislature and therefore cannot be inflated by consent, waiver, estoppel or judicial inclination. Bey v. Truss Systems, Inc., 360 N.J. Super.  324  (App. Div. 2003); Riccioni v. American Cyanamid Co., 26 N.J. Super. 1  (App. Div. 1953).

           In construing a statute, the role of a court is to determine the intent of the legislature and, generally the best indicator of that intent is the statutory language. DiProspero v. Penn, 183 N.J. 477, 492 (2005). In deciphering the Legislature’s intent, a court applies to the statutory terms the generally accepted meaning of the words used by the Legislature. Patel v. N.J. Motor Vehicle Comm’n,  200 N.J. 413 (2009). It is not the function of a court to presume that the legislature intended something other than that expressed by way of the plain language. O’Connell v. State,  171 N.J. 484, 488 (2002).

            A clear and unambiguous statute is not open to construction or interpretation. Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277 (1956). A court must construe and apply the statute as enacted. DiProspero, supra, 183 N.J. at 492 (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980).) If the plain language leads to a clear and unambiguous result, then the interpretative process is over. Richardson v. Bd. of  Trs., Police & Fireman’s Ret. Sys., 192   N.J. 189, 195 (2007). Only if the statutory language is ambiguous and open to more than one interpretation should the court look to extrinsic evidence. DiProspero, supra, 183 N.J. at 492.

           In this matter, I find the plain language of the statutes  to be  clear and unambiguous and I need not look to any extrinsic evidence to discern the intent of the Legislature.  The injury suffered by petitioner occurred on   December 1, 1989. While PIE may have been self-insured on December 1, 1989, the Association was not yet in existence on that date and therefore there was no Association for PIE to be a member of at that time. The Association did not come into being until April 16, 1993 and by subsequent legislation was made retroactive to October 1, 1990.  Based upon these  facts , the  petitioner’s  Application for Review or Modification of Formal Award  does not come within the purview of the statutes since a person injured prior to October 1, 1990 would not be eligible for  payment of workers’ compensation benefits by the Association. As a result, this court has neither the jurisdiction to grant the relief requested by the petitioner nor are the doctrines of collateral estoppel and res judicata applicable.

Conclusion

              For all of the foregoing reasons,  the motion of respondent is granted and the Application for Review or Modification of Formal Award is dismissed with prejudice. The verified petition to join the Second Injury Fund is also dismissed with prejudice.

           I will allow stenographic fees to be paid by respondent as follows:  

           $150.00 payable to the “Second Injury Fund”, which respondent shall forward  to   Director/Chief Judge Peter Calderone New Jersey Division of Workers’ Compensation, P.O. Box 381, Trenton, New Jersey 08625-0381

           $150.00 payable to Jersey Shore Reporting, LLC.

           Respondent shall submit to the court an Order which conforms with this decision.    

Dated:                   

                                                                     

                                                            ________________________ 
Philip A. Tornetta
                                         Judge of Compensation