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Witty v. Fortunoff

January 2, 1996

CECIL WITTY, PETITIONER-APPELLANT,
v.
FORTUNOFF, RESPONDENT-RESPONDENT.



On appeal from a Final Decision of the Department of Labor, Division of Workers' Compensation.

Approved for Publication January 2, 1996.

Before Judges A.m. Stein, Kestin, *fn1 and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by CUFF, J.A.D.

Petitioner Cecil Witty appeals from an order dismissing his petition for workers' compensation benefits on statute of limitations grounds. We reverse.

On July 10, 1990, while working as a maintenance worker for respondent Fortunoff, a ceiling tile fell on Witty. He complained of neck, shoulder and right arm problems and received medical treatment at the expense of his employer's workers' compensation carrier. Witty received treatment for his injury through December 7, 1990.

On December 17, 1990, Witty received a letter from Fortunoff's insurance carrier advising him to submit to an examination at the office of Dr. L. Scott Eisenberg in Irvington on December 26, 1990 at 12:15 p.m. The letter says:

I have asked Dr. Eisenberg to examine you for injuries you obtained at work on July 10, 1990, when some ceiling tiles fell on you. After December 26, 1990, Dr. Eisenberg will be your only authorized treating physician. According to New Jersey Workers' Compensation Law, if you do decide to go to another physician, on your own, the bill will be your responsibility.

As requested, Witty was examined by Dr. Eisenberg on December 26, 1990. About three weeks later, by letter dated January 17, 1991, Witty received a letter from the insurance carrier. He was advised that he needed no further treatment and his employer's workers' compensation carrier would not pay for any further treatment for the injuries sustained on July 10, 1990. The letter says:

I am writing because I have received the report from Dr. Eisenberg for your December 26, 1990 examination.

Dr. Eisenberg has reported that the problems you are having with your hand are "no way whatsoever either by causation, acceleration or exacerbation related to the minor injury" you suffered at work on July 10, 1990.

Travelers Insurance Company will no longer be paying for any medical treatment for injuries you obtained on July 10, 1990.

Witty filed a petition for workers' compensation benefits on January 8, 1993, more than two years after his last authorized treatment on December 7, 1990 and the examination by Dr. Eisenberg on December 26, 1990, but within two years of the insurance carrier's letter of January 17, 1991. The employer moved to dismiss the claim petition for lack of jurisdiction, i.e. the two-year statute of limitations had run. The Judge of compensation found that the December 26, 1990 examination constituted the last payment of compensation; therefore, Witty's petition had to ...


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