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Paladino v. Pier 1 Imports

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 26, 2009

KIMBERLY PALADINO, PETITIONER-APPELLANT,
v.
PIER 1 IMPORTS, RESPONDENT-RESPONDENT.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2001-33674.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2009

Before Judges Fuentes and Simonelli.

Petitioner Kimberly Paladino appeals from the Division of Workers' Compensation's February 6, 2009 order dismissing her application for review or modification of formal award. We affirm.

The facts are undisputed. On March 30, 2001, petitioner sustained a workplace injury to her left foot for which she received temporary and medical benefits. Pursuant to a February 3, 2005 order approving settlement, petitioner was awarded thirty-five percent disability to her left foot. On February 14, 2005, respondent mailed petitioner a check for the full amount of permanency benefits totaling $11,504, which petitioner does not dispute receiving shortly thereafter.

For some unknown reason, petitioner did not present the check to her bank until July 2006. After the bank refused to honor the check, petitioner requested another check. Respondent issued a replacement check on July 26, 2006, which petitioner received on August 8, 2006. On August 28, 2007, petitioner filed her application for modification or review of the February 3, 2005 order.

Respondent sought dismissal of the application pursuant to N.J.S.A. 34:15-27, which states:

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. If any party entitled to a review under this section shall become insane within the aforesaid year period, his insanity shall constitute grounds for tolling the unexpired balance of the 2-year period, which shall only begin to run again after his coming to or being of same mind. An award, determination and rule for judgment or order approving settlement may be reviewed at any time on the ground that the disability has diminished. In such case the provisions of section 34:15-19 of this Title with reference to medical examination shall apply. (Emphasis added).

Respondent contended that petitioner failed to file her application within two years from the date she received the original check in February 2005. Petitioner responded that the two-year period runs from the date of the replacement check because that is the date she last received a payment. The compensation judge disagreed with petitioner, finding that the two-year period began on February 14, 2005, the date respondent delivered the original check to petitioner. The judge also found that Bey v. Truss, 360 N.J. Super. 324 (App. Div. 2003) precludes tolling under the facts of this case.

On appeal, petitioner contends that her application was timely filed according to the plain language of N.J.S.A. 35:15- 27 because she last received payment on August 8, 2006, the date she received the replacement check.

Based on our review of the record, we conclude that petitioner's contention is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge of compensation in his February 6, 2009 oral decision.

Affirmed.

20091026

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