                                NOT FOR PUBLICATION WITHOUT THE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
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3750-17T2

CARL LUPIA,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

PORT AUTHORITY
TRANS-HUDSON
CORPORATION,

     Defendant-Appellant/
     Cross-Respondent.
______________________________

                   Argued September 11, 2019 – Decided August 11, 2020

                   Before Judges Koblitz, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-3939-15.

                   Thomas R. Brophy argued the cause for
                   appellant/cross-respondent (Port Authority Law
                   Department, attorneys; Thomas R. Brophy, of counsel
                   and on the briefs).

                   Charles Arthur Cerussi argued the cause for
                   respondent/cross-appellant (Cerussi & Gunn, PC,
            attorneys; Charles Arthur Cerussi, of counsel and on the
            briefs).

PER CURIAM

      Defendant Port Authority Trans-Hudson Corporation (PATH) appeals

from a final judgment in the amount of $469,500, entered pursuant to a jury

verdict in favor of plaintiff Carl Lupia, a PATH employee injured in a workplace

incident. In molding the final judgment, the trial judge accepted plaintiff's

interpretation of the Federal Employers' Liability Act (FELA) set-off provision

embodied in 45 U.S.C. § 55, allowing defendant to set-off its pre-trial payment

of $819,111.72 in stipulated damages for past medical expenses. Thus, in

calculating the final judgment, the judge first added the stipulated damages

amount to the $939,000 jury award for a gross damages amount of

$1,758,111.72. Thereafter, the judge subtracted the stipulated damages amount

from the gross damages amount, to arrive at a net of $939,000. Finally, the

judge reduced the net by plaintiff's fifty-percent comparative fault found by the

jury for a final judgment of $469,500.

      On March 16, 2018, the judge entered a memorializing order denying

defendant's post-trial motion to alter or amend the judgment pursuant to Rule

4:49-2. In appealing the March 16 order, defendant challenges the court's

interpretation of FELA's set-off provision, arguing that the $939,000 jury award

                                                                         A-3750-17T2
                                         2
and $819,111.72 in stipulated damages for past medical expenses should have

first been combined for a total gross damages amount of $1,758,111.72, and then

reduced by plaintiff's fifty-percent comparative fault for a net damages amount

of $879,055.86. Thereafter, according to defendant, its payment of $819,111.72

in past medical expenses included in the stipulated damages amount should then

offset the net, resulting in PATH being liable for only $59,944.14. 1 Plaintiff

cross-appeals, arguing that if we agree with defendant's methodology for

calculating the set-off, then plaintiff is entitled to a new trial on damages only,

or, in the alternative, an additur, because $59,944.14 is a manifestly unjust

award. Because we affirm, we need not address plaintiff's cross-appeal.

      We glean these facts from the record. On February 12, 2015, while

performing an inventory check in a small equipment room at the Journal Square

PATH station in Jersey City, a shelving unit detached from the wall, striking

plaintiff and knocking him to the ground, resulting in plaintiff sustaining

injuries. On the same date, plaintiff completed and signed a PATH Employee

Occupational Injury Report (injury report), in which he stated that as a result of

the incident, he suffered injuries to his "[h]ead," "neck," "back," "left hand,"


1
  Defendant also claimed a lien of $469.73 for a Railroad Retirement Board
Sickness Advance payment, to further reduce its proposed net award to
$59,474.41. Plaintiff does not dispute the $469.73 lien.
                                                                           A-3750-17T2
                                        3
"left ankle," and "right shoulder," and sustained "cuts on [his] forehead [and]

nose."

      In the injury report, plaintiff acknowledged:

                   I hereby apply for payment of all necessary
            medical expenses authorized by the Port Authority
            Office of Medical Services arising out of an alleged
            injury on duty on [February 12, 2015,] at [the
            equipment office]. I understand and acknowledge that
            PATH . . . has the right to a lien for any such medical
            expenses against any subsequent judgment or
            settlement of any action brought against PATH . . .
            arising out of said alleged injury on duty and I also
            understand and acknowledge that any payment by
            PATH . . . of such medical expenses is made on the
            specific condition that such payment is in no way an
            admission on the part of . . . PATH as to any liability
            for said alleged injury on duty.

            . . . PATH . . . WILL NOT UNDERTAKE NOR
            CONTINUE TO MAKE THE PAYMENT OF ANY
            MEDICAL EXPENSES UNLESS AND UNTIL THIS
            FORM IS SIGNED AND TREATMENT IS
            AUTHORIZED BY [THE] OFFICE OF MEDICAL
            SERVICES.

      From the date of the accident, when plaintiff was transported to the

hospital by ambulance, to December 28, 2017, the Office of Medical Services

approved all medical treatment requested by plaintiff, and the Port Authority

Claims Department made direct payments on plaintiff's behalf totaling

$819,111.72 in medical expenses. During that period, plaintiff treated with


                                                                       A-3750-17T2
                                       4
various doctors and underwent various treatment modalities, including physical

therapy, cortisone and epidural injections, as well as steroid, anti-inflammatory,

and pain medications to relieve pain. Plaintiff also underwent four surgeries,

including two cervical spine surgeries and a lumbar spine fusion surgery when

the other treatment failed to provide relief.     Although plaintiff's condition

improved from the treatment, some of his limitations and disabilities were

permanent. After plaintiff returned to work, he was placed on restricted duty

which prevented him from performing many of the physical activities he had

previously performed in his capacity as an operations examiner. Plaint iff also

experienced functional limitations in his normal activities at home.

      On July 7, 2015, plaintiff filed a personal injury complaint pursuant to

FELA, 45 U.S.C. § 51-60, alleging that his injuries, caused by "defective metal

shelving [falling] on top of him," were a result of defendant's "negligence and

failure to provide [plaintiff] with a safe place to work." A seven-day jury trial

was conducted on non-consecutive days from January 30 to February 8, 2018.

During the trial, in addition to producing the deposition testimony of Dr. Charles

Gatto, Dr. Kevin Finnesey, and Dr. John Capo, three orthopedic surgeons who

treated plaintiff, plaintiff called Ronald A. Fermano, an expert in the field of

architecture and facility safety. Fermano opined that defendant departed from


                                                                          A-3750-17T2
                                        5
accepted industry standards in the way that the shelving unit was assembled

and/or maintained. 2     Plaintiff also produced William Harris, a forensic

economist, who testified regarding plaintiff's past lost wages, future loss of

earning capacity, and cost of future medical treatment, quantifying those losses

as follows:

              1) $89,895 for past loss of earnings to date;
              2) $124,865 for future loss of overtime pay;
              3) $778,580 for future loss of pay if no longer employed
              by PATH; and
              4) $530,500 for future medical treatment.

      Throughout the trial, the admission of the past medical expenses paid by

defendant prior to trial in conjunction with the methodology for setting off the

payment were hotly contested.        As to the set-off, plaintiff and defendant

proposed conflicting methodologies for the calculation. Regarding the past

medical expenses, on the first day of trial, with defense counsel's consent,

plaintiff's attorney informed the judge that the parties stipulated "to the amount"

paid for plaintiff's past medical expenses, and "[t]he parties . . . stipulated and

agreed that the medical treatment received by plaintiff to date [was] . . .



2
  Defendant countered Fermano's testimony with its own expert in mechanical
engineering and accident reconstruction, Dr. Ali Saeegh. Saeegh opined that the
shelving could not have fallen over on its own, but rather someone or some other
external force contributed to the shelving unit falling.
                                                                           A-3750-17T2
                                         6
medically necessary and causally related to the subject incident." The judge

agreed to present the stipulation to the jury. However, two days later, defense

counsel withdrew the stipulation, except for the amount paid for plaintiff's

medical expenses.

      Plaintiff asserted that defendant was legally bound by the stipulation and

argued that the stipulation and the medical bills should be admitted into eviden ce

because the expenses were directly related to the issue of causation and the

credibility of the defense in contesting causation. 3 Plaintiff explained that the

past medical expenses constituted "an item of damages" just "like any other item

of dam[ages]," and "it would be more confusing if [the jury] didn't hear about

it," because then plaintiff would be "putting in a claim for future medicals"

without presenting anything "about past medicals." Defendant countered that

since the parties stipulated to the amount, it was unnecessary for the jury to be

informed of the expenses. Further, according to defendant, any evidence of

defendant's prior payment of plaintiff's past medical expenses was prejudicial to

defendant because the payments were not recoverable by plaintiff and had no




3
   In its defense, defendant claimed that plaintiff suffered from pre-existing
injuries.
                                                                           A-3750-17T2
                                        7
bearing on any other damages at issue in the case. According to defendant, the

speculation and confusion alluded to by plaintiff "goes both ways."

      As to the stipulation and the past medical expenses, the judge agreed with

defendant and ruled that there was "no need to put th[e] stipulation on the record

in front of the jury" as the past medical bills were "not . . . probative of . . . future

medical [expenses]" and were "not probative of proximate cause." The judge

explained that there was "no need . . . to read a stipulation to a jury on an issue

that they're not going to consider, [or] a number they're not going to see." 4 As

to the handling of the set-off, the judge agreed with plaintiff to apply the set-off

only "to the medical expenses," rather than "any future pain and suffering

award." Therefore, according to the judge, the pre-paid medical expenses would

be added to any verdict and then reduced by that amount in order to apply the

set-off. Any comparative fault found by the jury would then be applied to the

net. The judge explained that such an approach would avoid any "double

recovery" or "under compensation of the injured party."



4
  In fact, in the final charge, the judge instructed the jurors that although they
"heard testimony regarding [p]laintiff's medical treatment from the time of the
accident to the present time," they were "not to consider or speculate about the
amount of the cost associated with the treatment or how those costs have been
paid."


                                                                                 A-3750-17T2
                                           8
      On February 8, 2018, the jury returned a verdict totaling $939,000,

attributing fifty percent negligence to defendant and fifty percent to plaintiff.

The jury specified the damages awarded as follows:

            1) $89,000 for past lost wages; 5
            2) $500,000 for future lost wages;
            3) $250,000 for future medical expenses; and
            4) $100,000 for pain and suffering.

Following the verdict, in accordance with the judge's prior decision regarding

the methodology for the calculation of the set-off, the judge molded the award

to a final judgment of $469,500.

      Thereafter, defendant moved pursuant to Rule 4:49-2 to alter or amend the

judgment in accordance with its previously proposed methodology for

calculating the set-off. On March 16, 2018, following oral argument, the judge

denied the motion, finding no legal basis to reconsider his earlier decision. In

an oral decision from the bench, the judge posited there was no dispute about

defendant's "entitle[ment] to a set-off," only whether the set-off should be

applied before or after plaintiff's comparative fault. The judge found all the




5
    Prior to trial, defendant had paid plaintiff $121,700.93 in wage
supplementation, but appears to have abandoned any claim to a set-off of this
amount.


                                                                         A-3750-17T2
                                       9
cases defendant relied upon to support its position "factually distinguishable"

from this case.

      In rejecting defendant's proposal for calculating the set-off,6 the judge

explained that his earlier ruling was "appropriate under . . . FELA." To support

his decision, the judge relied heavily on the fact that the stipulated damages of

$819,111.72 for past medical expenses "was not before the jury in any way,

shape, or form." Considering "the nature of the payments made in th[e] case in

conjunction with the . . . specific awards by the jury, the ultimate outcome

charge that was given to the jury, and what the jury knew and [did not] know[,]"

the judge concluded that his calculation was "the most appropriate and fair and

just way to apply the set-off" that was not "inconsistent with the statute or

contrary to law." The judge entered memorializing orders, and this appeal

followed.

      On appeal, defendant argues that "FELA's statutory provisions governing

damages expressly do not provide for a windfall, which is what [p]laintiff would

receive under the trial court's decision." Defendant asserts "[i]t is an absurd and


6
  Notably, at oral argument, defense counsel agreed with the judge that if there
was no comparative fault assigned to plaintiff, then the final award to plaintiff
would have been $939,000, calculated by adding the pre-paid medical expenses
to the jury verdict, then subtracting that amount to apply the set-off, resulting in
a net of $939,000.
                                                                            A-3750-17T2
                                        10
unjust result to find that, because [p]laintiff's total damages are reduced by his

own negligence, [defendant's] set-off based on its payment of 100% of his

medical bills must also be reduced [by] [fifty percent]." According to defendant,

instead, "FELA's contributory negligence and set[-]off provisions should be read

together and [p]laintiff's award should be reduced on a dollar-for-dollar basis."

      "We review questions related to statutory interpretation de novo, without

affording any deference to the trial court."      MEPT Journal Square Urban

Renewal, LLC v. City of Jersey City, 455 N.J. Super. 608, 622 (App. Div. 2018).

"The Legislature's intent is the paramount goal when interpreting a statute and,

generally, the best indicator of that intent is the statutory language." DiProspero

v. Penn, 183 N.J. 477, 492 (2005). "We ascribe to the statutory words their

ordinary meaning and significance, and read them in context with related

provisions so as to give sense to the legislation as a whole." Ibid. (citations

omitted).

      "A court should not 'resort to extrinsic interpretative aids' when 'the

statutory language is clear and unambiguous, and susceptible to only one

interpretation . . . .'" Ibid. (quoting Lozano v. Frank DeLuca Const., 178 N.J.

513, 522 (2004)). "On the other hand, if there is ambiguity in the statutory

language that leads to more than one plausible interpretation, we may turn to


                                                                           A-3750-17T2
                                       11
extrinsic evidence, 'including legislative history, committee reports, and

contemporaneous construction.'" Id. at 492-93 (quoting Cherry Hill Manor

Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). "We may also resort to extrinsic

evidence if a plain reading of the statute leads to an absurd result or if the overall

statutory scheme is at odds with the plain language." Id. at 493. To discern the

Legislature's intent, the statute's plain language is therefore the starting point.

Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 418 (2009).

      In pertinent part, FELA provides that:

             Every common carrier by railroad . . . shall be liable in
             damages to any person suffering injury while he is
             employed by such carrier . . . for such injury or death
             resulting in whole or in part from the negligence of any
             officers, agents, or employees of such carrier, or by
             reason of any defect or insufficiency, due to its
             negligence, in its cars, engines, appliances, machinery
             . . . or other equipment.

             [45 U.S.C. § 51.]

      "FELA generally provides the exclusive federal tort remedy for railroad

employees seeking to recover for personal injury sustained in the course of

employment." Andrews v. Norfolk S. R.R. Corp., 77 N.E.3d 1028, 1032-33 (Ill.

App. Ct. 2017). "State and federal courts share concurrent jurisdiction over

FELA actions." Id. at 1033 (citing 45 U.S.C. § 56). However, "[w]here, as here,

a FELA action is adjudicated in state court, it's governed by state procedural

                                                                              A-3750-17T2
                                         12
law, but federal substantive law."      Ibid. (citing St. Louis Sw. Ry. Co. v.

Dickerson, 470 U.S. 409, 411 (1985)). "[Q]uestions concerning the measure of

damages in a FELA action are federal in character" and such "is true even if the

action is brought in state court." Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490,

493 (1980).

      FELA "supplant[s] a patchwork of state legislation with a nationwide

uniform system of liberal remedial rules, displac[ing] any state law trenching on

the province of the Act." S. Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 371 (1953).

"It establishes a rule or regulation which is intended to operate uniformly in all

the States, as respects interstate commerce, and in that field it is both paramount

and exclusive." Erie R. Co. v. Winfield, 244 U.S. 170, 172 (1917). "[T]he

general congressional intent" in enacting FELA "was to provide liberal recovery

for injured workers" and a flexible remedy "to meet changing conditions"

affecting the railroad "industry's duty towards its workers." Kernan v. Am.

Dredging Co., 355 U.S. 426, 432 (1958). In that regard, FELA seeks to adjust

the cost of injury "equitably between the worker and the [railroad]," Sinkler v.

Mo. Pac. R.R. Co., 356 U.S. 326, 329-30 (1958), to "stimulate" railroad

companies "to greater diligence for the safety of their employees," Jamison v.

Encarnacion, 281 U.S. 635, 640, (1930), to protect the health of employees, Urie


                                                                           A-3750-17T2
                                       13
v. Thompson, 337 U.S. 163, 191 (1949), and to promote the public interest.

Minneapolis, St. P. & S.S.M. Ry. Co. v. Rock, 279 U.S. 410, 413, (1929).

      "To further [the Act's] humanitarian purposes, Congress did away with

several common-law tort defenses that had effectively barred recovery by

injured workers." Conrail v. Gottshall, 512 U.S. 532, 542 (1994). "As cataloged

in Gottshall, . . . FELA 'abolished the fellow servant rule'; 'rejected the doctrine

of contributory negligence in favor of . . . comparative negligence'; 'prohibited

employers from exempting themselves from . . . FELA through contract'; and

. . . 'abolished the assumption of risk defense.'" Norfolk, 538 U.S. at 145

(quoting Gottshall, 512 U.S. at 542-543); see 45 U.S.C. §§ 51-55. Thus, FELA

is to be construed liberally, so that the primary purpose of the legislation may

be more readily effectuated. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480

U.S. 557, 562 (1987); see Gottshall, 512 U.S. at 543 (noting courts "have

liberally construed FELA to further Congress' remedial goal").

      The FELA set-off provision codified at 45 U.S.C. § 55 was primarily

designed to bar the various schemes that railroads had contrived to exempt

themselves from paying full damages for employee injuries, including pre-injury

liability releases and contractual stipulations that an employee's acceptance of

benefits from the employer's relief fund would amount to a release and


                                                                            A-3750-17T2
                                        14
satisfaction of all claims against the railroad. See Duncan v. Thompson, 315

U.S. 1, 5-6 (1942); see also Philadelphia, Baltimore & Washington RR. Co. v.

Schubert, 224 U.S. 603, 612-13 (1912). To that end, the FELA set-off provision

ensured that the railroad's liability under FELA "survived the acceptance of

benefits," while "permitting a set-off of any sum the company had contributed

toward any benefit paid to the employee." Schubert, 224 U.S. at 613. Thus, the

FELA set-off provision has twin aims; it "allow employers to set off money paid

to an injured employee because of his or her injury" and prevents employers

from "seeking to totally avoid liability." Clark v. Burlington N., Inc., 726 F.2d

448, 451 (8th Cir. 1984).

      These twin aims are codified in pertinent part within the plain language

of the FELA set-off provision which provides that:

            Any contract, rule, regulation, or device whatsoever,
            the purpose or intent of which shall be to enable any
            common carrier to exempt itself from any liability
            created by . . . [FELA], shall to that extent be void:
            Provided, That in any action brought against any such
            common carrier under or by virtue of any of the
            provisions of . . . [FELA], such common carrier may
            set[-]off therein any sum it has contributed or paid to
            any insurance, relief benefit, or indemnity that may
            have been paid to the injured employee or the person
            entitled thereto on account of the injury or death for
            which said action was brought.

            [45 U.S.C. §55.]

                                                                         A-3750-17T2
                                      15
      FELA's set-off provision "operate[s] in this context to create an exception

to the 'collateral source' rule," Wendelboe v. SeaRiver Mar., Inc., 950 So. 2d

826, 828 (La. Ct. App. 2006).

            The collateral source rule is a substantive rule of law
            that bars a tortfeasor from reducing the quantum of
            damages owed to a plaintiff by the amount of recovery
            the plaintiff receives from other sources of
            compensation that are independent of (or collateral to)
            the tortfeasor. Married to this substantive rule is an
            evidentiary rule that proscribes introduction of
            evidence of collateral benefits out of a concern that
            such evidence might prejudice the jury.

            [Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir.
            1994).]

      "The rationale for this exception is to protect an employer that has

purposefully sought to indemnify itself against double liability by providing a

self-funded plan to compensate workers for injuries that may lead to litigation."

Wendelboe, 950 So. 2d at 828. "Assuming such a plan or fund is proper and

fair, FELA allows an employer to credit plan payments against any recovery in

tort so that the plaintiff does not recover doubly." Ibid. (citing Clark, 726 F.2d

at 450). When an employer drafts a plan that is clearly consistent with FELA's

twin aims "to provide a means by which employees can receive employer

assistance and compensation for their injuries" and provide employers with "an


                                                                          A-3750-17T2
                                       16
incentive to provide such benefits while protecting themselves against double

payment obligations," then "'the employer's manifest intent to avoid double

liability in offering . . . [a] plan[] must be respected if the collateral source rule

is not to swallow up 45 U.S.C. § 55 at the ultimate expense of employees. '" Id.

at 830-31 (quoting Clark, 726 F.2d at 451).

      Here, it is undisputed that the injury report plaintiff signed on the date of

the incident is consistent with the twin aims of FELA because it provides a

means by which plaintiff could recover immediate payment for his medical

expenses while ensuring that defendant would not face double liability in any

subsequent litigation. Likewise, because defendant, and not a third party, pre-

paid plaintiff's past medical expenses, the collateral source rule rationale does

not apply to bar defendant from seeking a full set-off for the payment. However,

as the judge pointed out, if defendant were permitted to offset its liability for

pain and suffering, lost wages, and future medical expenses by monies paid for

past medical expenses, when those expenses were neither considered by nor

presented to the jury, then plaintiff would be left undercompensated for his

losses and defendant would be permitted to exempt itself from liability contrary

to the express language of 45 U.S.C. § 55.




                                                                              A-3750-17T2
                                         17
      Because there are no controlling cases governing the correct methodology

for calculating FELA's set-off provision, defendant relies on other state and

federal cases to support its position.       However, these cases are neither

controlling, nor binding on New Jersey courts. See State v. Warriner, 322 N.J.

Super. 401, 407 (App. Div. 1999) (reviewing a federal district court and an out-

of-state decision and noting that "[w]hile neither decision is binding on this

court, we find them persuasive"). Moreover, as the judge here astutely pointed

out, these cases are factually distinguishable "in terms of the nature of the award,

what the jury was told, the damages that were presented to the jury, [and] how

the set-off [was] to be applied."

      For example, in Clark, the plaintiff employee brought an action under

FELA against the Burlington Northern Railroad claiming damages for injuries

sustained while working as a foreman. 726 F.2d at 449. The jury found the

plaintiff "ten percent negligent and awarded him $171,121.21."                 Ibid.

Subsequently, the trial court "reduced the jury award by $47,268.21 because of

disability payments and advances [the defendant] made to [the plaintiff] before

trial." Ibid. The Eighth Circuit affirmed the trial court's decision, finding that

it "correctly credited th[e] amount against the final verdict to preven t double

recovery." Id. at 451. However, the court noted that "[u]nder the disability


                                                                            A-3750-17T2
                                        18
plans, [the plaintiff] had already received a percentage of his lost wages" and

"[t]he jury undoubtedly considered the stipulated lost wages in calculating a

damage award." Ibid.

      In Eversole v. Consol. Rail Corp., the plaintiff employee's $140,000 jury

verdict in his FELA lawsuit was reduced to $19,600 because he was found

eighty-six percent contributorily negligent. 551 N.E.2d 846, 849 (Ind. Ct. App.

1990). Subsequently, the defendant railroad company was granted a $17,466.93

set-off against the judgment "for sickness and insurance benefits previously

received by [the plaintiff]," further reducing plaintiff's damage award to

$2434.80.    Ibid.   The defendant's payment of supplemental benefits was

governed by a collective bargaining agreement providing that "benefits paid

under this Plan will be offset against any right of recovery for loss of wages the

employee may have against the employing railroad" and "a recovery which does

not specify the matters covered thereby shall be deemed to include a recovery

for loss of wages to the extent of any actual wage loss due to the disability

involved." Id. at 855. In affirming the judgment, the Indiana Court of Appeals

explained that notwithstanding the fact that the jury returned a general verdict,

"evidence of lost wages was placed before the jury.         Absent any contrary




                                                                          A-3750-17T2
                                       19
indication, it is reasonable to assume the jury considered this evidence in

calculating its damage award." Ibid.

      Similarly, in Washington v. Atchinson, Topeka & Santa Fe Ry. Co., after

the plaintiff employee successfully sued the defendant railway company under

FELA, "[t]he jury found [the] defendant to be eight percent at fault and [the]

plaintiff ninety-two percent at fault, and . . . awarded plaintiff $263,444.75 in

damages in a general verdict that the trial court reduced by ninety-two percent

to account for plaintiff's comparative negligence." 834 P.2d 433, 434 -35 (N.M.

Ct. App. 1992). Subsequently, the defendant was granted a set-off against the

judgment for benefits the plaintiff previously received pursuant to a collective

bargaining agreement that "specifically provided for an offset of benefits paid

under the plan in the event of recovery for lost wages by an employee against

the railroad." Id. at 435.

      In affirming the judgment, the New Mexico Court of Appeals explained:

            Under the collective bargaining agreement, defendant
            was also entitled to reimbursement for sickness benefits
            up to the amount plaintiff was awarded in lost wages.
            Since the jury's award to plaintiff was a general one, the
            concluding sentence in the applicable paragraph of the
            collective bargaining agreement comes into play: "[A]
            recovery which does not specify the matters covered
            thereby shall be deemed to include a recovery for loss
            of wages to the extent of any actual wage loss due to
            the disability involved."      Here, because plaintiff

                                                                         A-3750-17T2
                                       20
            claimed lost wages in the amount of $150,000 to
            $255,000, the trial court correctly granted defendant a
            set-off of $8473.09 -- the amount paid to plaintiff in
            sickness benefits. To hold otherwise would permit the
            unjust enrichment of plaintiff at defendant's expense
            and would violate the policy considerations counseling
            against disclosure of insurance and partial payment of
            a claim, and it could conceivably have an undesirable
            chilling effect on the employer's willingness to award
            voluntary prejudgment payments.

            [Id. at 437 (citations omitted).]

      In contrast, here, the jury returned a specific damages award and could

not consider past medical expenses in calculating its award because the evidence

was never presented to the jury. As proposed by defendant, reducing the jury

verdict to account for plaintiff's fifty percent comparative negligence, and then

further reducing the award by defendant's pre-paid medical expenses to account

for the set-off would result in an unfair and unjust award to plaintiff, and would

exempt defendant from liability for plaintiff's pain and suffering, lost wages,

and future medical expenses. On the other hand, under the methodology adopted

by the judge, defendant faces no double liability for past medical expenses

because those expenses were not considered by the jury or included in the jury

verdict which explicitly delineated the damages awarded.

      Contrary to defendant's argument, to untether the injury report signed by

plaintiff from the proofs presented at trial and the evidence considered by the

                                                                          A-3750-17T2
                                       21
jury would be inconsistent with the twin aims of the FELA set-off provision,

and would allow defendant to totally avoid liability for plaintiff's pain and

suffering, lost wages, and future medical expenses. Because the congressional

intent in enacting FELA is "to provide liberal recovery for injured workers,"

Kernan, 355 U.S. at 432, and the legislation is to be construed liberally in order

to effectuate FELA's aims, Atchison, 480 U.S. at 562, we agree with the judge's

rejection of defendant's proposed methodology for calculating the set-off and

we see no basis to intervene.

      To the extent we have not addressed a particular argument, it is because

either our disposition makes it unnecessary or the argument was without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                          A-3750-17T2
                                       22
