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Dupree v. County of Passaic

June 18, 2008


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, #1994-12334.

Per curiam.


Argued April 30, 2008

Before Judges Parker and Koblitz.

Petitioner Patsy Dupree appeals pro se from a workers' compensation order which denied payment for certain pre-judgment medical bills and dismissed her Second Injury Fund Petition, and confirmed her permanent disability remained 25% of partial total. She alleges that lack of diligent representation by various prior counsel improperly led to the dismissal of her claims. After careful review of the history of this matter and petitioner's arguments in light of the applicable law, we affirm.

On January 18, 1994, petitioner slipped and fell on steps at the Passaic County Courthouse where she worked as an administrative assistant. She received physical therapy and medication for the pain due to her back injury. Seven months after the fall, she received a letter from respondent's insurance company indicating that, based on an evaluation by respondent's expert physician, petitioner had reached maximum medical improvement. The insurance company would not authorize any further medical treatment. After receiving this letter, petitioner chose her own doctors and incurred two medical bills totaling $19,400.

The initial trial took place in 1998. Testimony at trial was waived and the court awarded petitioner 25% of partial total for orthopedic and neuropsychiatric residuals. This resulted in 150 weeks of payment at $140 per week for a total of $21,000. Respondent was also ordered to pay submitted medical bills. The bills from the petitioner's personally chosen doctors were not submitted at trial.

One year after the decision was rendered, petitioner filed a motion requesting that the two medical bills be paid by respondent's insurance carrier. Her motion for payment of the bills was dismissed in May 2005 because the bills had not been produced at trial. The lengthy delay prior to resolution of this motion was caused by petitioner's inattentive counsel.

Petitioner filed a pro se Second Injury Fund Verified Petition in July 2005. In that petition seeking to be declared permanently totally disabled, petitioner indicated that after the fall she worked part time in customer service at the YMCA and for the Bank of New York.

Petitioner also filed a pro se motion to vacate the dismissal order, which was converted by the court into a motion for reconsideration. The workers' compensation judge presided over a trial on May 30, 2007, to consider two issues: the payment of the bills which had not been submitted at the earlier trial and whether or not petitioner was permanently totally disabled. Both petitioner and respondent introduced medical reports into evidence without testimony from the doctors.

Petitioner testified that she was involved in a subsequent automobile accident in which she injured her neck. In spite of this subsequent injury, she indicated that her condition was no worse than at the time of the first trial in 1999. She had been working part-time and was currently receiving unemployment benefits. Under the statute, petitioner had the burden of proving that her incapacity had increased since the original award and that the increased disability was caused by the original fall. Also, she was obligated to bring the claim within two years from the date when she last received a payment. N.J.S.A. 34:15-27. Her last payment was received in June 1999. She filed for permanent disability six years later. Although petitioner's application for increased benefits was filed well past the statutory deadline, the Workers' Compensation Court considered petitioner's claim on its merits, finding that she had not met her burden of proving permanent and total disability. The court found that her ability to work part-time and receipt of unemployment benefits evidenced an ability to work.

The court found that respondent was not responsible for the two bills since they had not been presented at trial. The court speculated that petitioner's attorney did not submit the bills because he knew the submission would be futile, given that the doctors were not authorized by the employer. An employee seeking workers' compensation must first request that the employer supply such care. Anrejcak v. Elmora Bake Shop, 182 N.J. Super. 567, 574 (App. Div. 1994) (citing Benson v. Coca Cola Co., 120 N.J. Super. 60, 64 (App. Div. 1972)). Although petitioner claims she told her attorney at the time that she still required pain management care, she presented no evidence that a request for additional medical treatment was made to respondent.

The court had substantial, credible evidence in the record to support the decision that petitioner was not permanently totally disabled as a result of her 1994 fall. Thus, the Second ...

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