August 15, 2008
PHILLIP POLLOCK, PETITIONER-RESPONDENT,
TRI STATE MOTOR TRANSIT, INC., RESPONDENT-APPELLANT,
SECOND INJURY FUND, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 98-18877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2008
Before Judges Winkelstein and LeWinn.
N.J.S.A. 34:15-27 provides that a Workers' Compensation "award . . . or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment . . . on the ground that the incapacity of the injured employee has subsequently increased." This proceeding is known as a "reopener" application. The issue presented here is when the statutory two-year period expired in petitioner's case.
On December 18, 1997, petitioner was injured in a work-related accident while in the employ of Tri State Motor Transit, Inc. (TRISM). The claim for that injury was resolved by an order approving settlement entered on October 2, 2001, awarding petitioner 55% of permanent partial total disability. This award was payable over a period of 202.53 weeks at a rate of $364 per week, for a total of $73,720. This award also provided for temporary disability benefits for the periods from December 18, 1997 to March 13, 1998, and from February 22, 1999 to April 14, 1999. During that latter benefits period, petitioner underwent a surgical procedure and was then discharged to return to work as of April 15, 1999.
Payment of the October 2, 2001 award was delayed by the bankruptcy of the workers' compensation insurance carrier responsible for paying petitioner's benefits. Petitioner filed a motion on January 10, 2002, seeking enforcement of the settlement terms. On March 14, 2002, TRISM sent petitioner payment of the full amount of permanent disability and temporary compensation benefits owed. On March 28, 2002, petitioner received payment of $965.14 representing TRISM's court-ordered penalty for late payment of the award.
Subsequently petitioner experienced increased problems and sought medical treatment without notifying either TRISM's insurance carrier or his attorney. That additional course of treatment led to another surgery on January 25, 2003.
Petitioner did subsequently contact his attorney about his increased medical symptoms and treatment. As a result, on September 7, 2004, petitioner filed an application to reopen and/or modify the formal award pursuant to N.J.S.A. 34:15-27. TRISM filed an answer and a motion to dismiss the reopener application on jurisdictional grounds, claiming that it was filed more than two years after the last payment of benefits, which had occurred on March 14, 2002.
TRISM contended that the benefits period should be calculated by including the period between the two temporary disability benefits payments, namely the period between March 13, 1998 and February 22, 1999. During that interim petitioner received no medical or temporary disability benefits.
TRISM argued before the Workers' Compensation judge that the 49.42-week period between March 13, 1998 and February 22, 1999 should be added to the 153.11 weeks from April 14, 1999 to the date on which petitioner was cleared to return to work. Had that period been included, the statutory two-year time limit would have commenced running as of March 20, 2002, and petitioner's reopener application would have been due by March 20, 2004. The judge noted that "some" but not "all" parties "commonly refer" to that 49.42-week period as "filling in the gaps."
TRISM acknowledged that the "statute concerning the payment of Workers' Compensation benefits talks about benefits being paid consecutively[.]" However, TRISM argued that there was "a general practice among this bar that in factoring the accrued period of partial temporary benefits in an award that the Respondent will include any period of time when the Petitioner didn't receive temporary benefits. . . . That is a custom that has been done. There's nothing wrong with that that [counsel] can find by statute or case law." The judge responded that "this is a custom that some carriers follow, some don't."
Petitioner argued that his permanent disability became "fixed" as of April 15, 1999, when he was discharged from treatment. His permanent disability award was determined in the October 2, 2001 settlement. As of the date of that award, petitioner argued, his two periods of temporary disability payments had terminated and his permanent disability had been determined as of April 1999. Therefore, the 202.53 weeks of permanent benefits included in the October 2, 2001 settlement began in April 1999. Petitioner contended that the mere fact that he had received "accelerated payment" in the form of a lump sum did not operate to foreshorten the full period of permanent disability benefits. By those calculations, petitioner's last payment would have been due on March 4, 2003. Therefore, he argued, his September 7, 2004 reopener application was timely under N.J.S.A. 34:15-27.
The Workers' Compensation judge held extensive oral argument on TRISM's motion on March 10, 2006. At the conclusion of that hearing, the judge afforded both parties the opportunity to file supplemental briefs. The judge then heard additional argument on May 17, 2006, at which time he rendered his decision from the bench.
After reviewing the history of case and summarizing the positions of the parties, the judge ruled as follows:
[N.J.S.A. 34:15-27], commonly known as the reopener statute, provides for a two-year period of filing for an application for review and modification. It further provides that the two years is to commence when the injured person last received an authorized payment pursuant to the order . . . .
Respondent's argument rests upon the contention that payments are to be made consecutively and as such, the gap of 49.42 weeks should count as a period of time towards permanency.
[N.J.S.A.] 34:15-27 sets forth the manner in which payments are to be made. The statute provides . . . that compensation for all classes of injuries shall run consecutively, not concurrently, and that payments are to be made first for medical and hospital services and medicines as provided in . . . [N.J.S.A. 34:15-15], and after a seven-day waiting period, compensation during temporary disability. If the total period of disability extends beyond seven days, compensation is to cover waiting period[s]. Following both, either or none of the above, compensation consecutively for each permanent injury, except that permanent disability, total or partial, shall not be determined or awarded until after 26 weeks from the date of employee's final active medical treatment, or until after 26 weeks from the date of the employee's return to work, whichever is earlier, or, if no time is lost or no treatment is rendered, then permanent disability, total or partial, shall not be determined or awarded until after 26 weeks from the date of the accident. And then the statute continues and includes other matters which are not with respect to this claim.
And when reduced to layman's terms, . . . payment made consecutively, meaning first the medical services are to be taken care of and additionally payment of temporary disability benefits, thereafter permanent disability which shall not be determined or awarded until after two weeks from the date of the employee's return to work or final active medical treatment, as such the Courts have concluded that permanency is not to be determined until an injured Petitioner's condition has become "fixed and measurable," meaning it is to be determined only after the final date of treatment.
In this instance, the Petitioner received treatment and temporary disability benefits from December 18, 1997 to March 13, 1998 thereafter, after a period of approximately nine months during which period Petitioner's condition apparently continued to deteriorate since he did ultimately need additional treatment, so it's obvious to the Court that there is an issue of his condition being fixed and measured because ultimately he required additional surgery which necessitated the Petitioner's continued disability on a temporary but total condition from February 22, 1999 to April 14, 1999.
Now, during the above dates, Petitioner's condition was not fixed nor measurable for purposes of an award pursuant to the requirement of statute and case law. Indeed the percentage of permanency was not ultimately fixed until October 2, 2001, which was the date of the order approving settlement. Now, that period of determination was based upon final exams and evaluations, which were submitted to the Court and entered into evidence on October 2, 2001 based upon examinations that took place on October 23, 2000 on behalf of the Petitioner. These were submitted as a result of an evaluation by Dr. Marshall Pressman [on] April 26, 2000 and May 15, 2000 on behalf of the Respondent as determined by Dr. Zazzo. In review of the transcript that was obtained for October 2, 2001, it reflects the submissions of those documents into evidence. That's reflected on page 22 of that transcript. It is apparent, therefore, that the Petitioner's condition was, in fact, fixed and measured only after April 14, 1999 since the examination is to be placed at a period thereafter.
I therefore find that the payment of the award of 202.53 weeks are to be calculated from a period to commence on April 15, 1999 and end on March 4, or approximately March 4, 2003. And therefore, pursuant to [N.J.S.A. 34:15-27], it would mandate a filing of an application for review on or before March 4, 2005. And since the Petitioner filed the application on September 7, 2004, I find and conclude that the application for review pursuant to [N.J.S.A. 34:15-27] was timely filed.
The judge rejected TRISM's assertion of the "filling in the gap" practice, which the judge characterized as "just that, it is a practice. . . . There is no statutory mandate for that practice." The judge noted that since TRISM "did fill in the gaps and the payments were made somewhat earlier, they can be considered in the nature of some sort of an acceleration and in no way [a]ffect the date for the filing of the reopener."
We affirm substantially for the reasons set forth in the Worker's Compensation judge's decision. R. 2:11-3(e)(1)(D). "Courts generally give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999)(citation omitted). "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. Jersey City Fire Dept., 175 N.J. 244, 262 (2003)(quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) certif. denied, 140 N.J. 277 (1995)).
Pursuant to this standard, we conclude the Worker's Compensation judge properly analyzed the statutory provisions and correctly rejected TRISM's reliance upon the "practice" of "filling the gap" in this case. See Andrejcak v. Elmora Bake Shop, 182 N.J. Super. 567, 572 (App. Div. 1982) ("Examination of the statutory policy on payment indicates that [the] date of last payment . . . should be the date when payments would expire if petitioner were compensated according to the schedule of benefits awarded.")
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