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Di Bernard v. Great Atlantic and Pacific Tea Co.

July 18, 1997

LEONARD DI BERNARD, PETITIONER-RESPONDENT,
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY, RESPONDENT-APPELLANT.



On appeal from New Jersey Department of Labor, Division of Workers' Compensation.

Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

The opinion of the court was delivered by

STERN, J.A.D.

This is an appeal from an order entered on May 30, 1996 requiring respondent employer to "continue to provide all necessary medical treatment" for petitioner's previously assessed compensable injury. The order was based upon the Judge of Compensation's written decision on a "motion for medical and temporary disability benefits."

It is undisputed that petitioner sustained a work-related injury on July 8, 1980 for which he underwent back surgery on two occasions. By judgment entered on March 15, 1985 he was found "to be totally and permanently disabled as of September 6, 1982." Respondent-employer (hereinafter "respondent," although appellant before us) was found "responsible for 66 2/3 of total permanent disability for the orthopedic and neurological residuals of two laminectomies at L4-L5 with excision of herniated disc and lysis of adhesions superimposed upon a previously-surgically-treated back, with nerve root compression on the right." As a result of the "last accident and pre-existing back surgery," which had occurred prior to the 1980 work related injury, petitioner was also "found eligible for benefits from the Second Injury Fund." The respondent's last payment for the total permanent disability was in May 1988 for a period through June 5, 1988. Respondent's last payment for medical treatment was in August 1990. The Second Injury Fund began making disability payments effective June 6, 1988.

In 1993, over two years after both the last medical treatment and payment, petitioner began to again suffer serious back pain. As a result of examinations, a CAT scan, and a myelogram, a recurrent herniated disc or related scar tissue was discovered, and another operation was deemed necessary. In October 1993, after contacting respondent, petitioner underwent a hemilaminectomy at L4-L5. The surgeon attributed petitioner's condition to the prior surgeries.

Based on these findings, Judge Fred H. Kumpf of the Division of Workers' Compensation concluded that petitioner's need for medical treatment was "causally related to the injury of July 8, 1980" and that "but for the occurrence of the herniated disc at the L4-L5 level ... the petitioner would not have had a recurrent disc at that level." As a result, he concluded "that the injury of July 8, 1980 caused the petitioner's need for surgery in 1993" and that "the bills for treatment petitioner received for the recurrent disc were reasonable." *fn1

The Judge rejected the employer's claim that it was no longer responsible for the medical treatment because more than two years elapsed since the last payment for medical treatment and because the Fund had been paying the disability benefits for more than two years prior to the 1993 operation.

The Judge found that because "petitioner is still receiving [disability] benefits, applications for medical treatment under N.J.S.A. 34:15-15 are still viable." He held that "since the medical treatment is related to the compensable injury, the respondent is responsible for that medical treatment notwithstanding the fact that the respondent itself has not paid [the] total permanent disability benefits to the petitioner for more than two years before the application for the treatment."

On this appeal respondent argues that "petitioner's application to obtain payment of medical bills claimed to be related to his compensable accident is barred by the provisions of N.J.S.A. 34:15-27 as it was filed more than two years after the last payment of workers' compensation by the respondent." We disagree, and affirm.

N.J.S.A. 34:15-27 provides, in pertinent part, that:

An agreement for compensation may be modified at any time by a subsequent agreement. A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased ....

Judge Kumpf held that the two year statute of limitations was inapplicable "because petitioner is still receiving permanent total disability benefits" and "the cases make it clear that where the petitioner is still receiving benefits, applications for medical treatment under N.J.S.A. 34:15-15 are still viable," citing Howard v. Harwood's Restaurant Co., 25 N.J. 72, 135 A.2d 161 (1957), and Fierro v. Public Serv. Coordinated Transport, 44 N.J. Super. 73, 129 A.2d 470 (Cty. Ct. 1957). The employer argues that the cases relied upon by Judge Kumpf deal with a situation where "the petitioner was receiving total permanent disability compensation benefits from the respondent [employer] as a result of a totally disabling compensable accident and was seeking further medical benefits from the respondent in ...


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