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Pollock v. Tri State Motor Transit

August 15, 2008

PHILLIP POLLOCK, PETITIONER-RESPONDENT,
v.
TRI STATE MOTOR TRANSIT, INC., RESPONDENT-APPELLANT,
v.
SECOND INJURY FUND, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 98-18877.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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