June 30, 2010
SUSAN DANTER, PETITIONER-APPELLANT,
ARROW INTERNATIONAL, INC., RESPONDENT-RESPONDENT.
On appeal from the Division of Workers' Compensation, Docket Nos. CP2000-41951, CP2003-2151, CP2004-18298 and CP2006-13575.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2010
Before Judges Fisher and Reisner.
On March 14, 2007, petitioner's four workers' compensation petitions were marked by the compensation court as "not moved."*fn1
A subsequent motion to dismiss all four matters for lack of prosecution was granted on September 19, 2007; that order was received by petitioner's counsel on September 27, 2007. To obtain reinstatement, petitioner was required to move for relief within one year. N.J.S.A. 34:15-54.
Petitioner's attorney, however, did not move for reinstatement until October 3, 2008, citing his own sudden illness that commenced on September 7, 2008 and prevented his return to work until October 3, 2008. Judge Joshua Freidman found the motion untimely and petitioner has appealed to this court. We affirm substantially for the reasons set forth by Judge Freidman in his oral decision of July 22, 2009.
As the record fully demonstrates, petitioner's attorney was aware of the dismissal order soon after its entry and, as he later certified, made no effort to immediately seek reinstatement. Instead, counsel's goal was to use up as much of the one-year period as possible before seeking reinstatement, as he acknowledged during argument on the motion to reinstate:
THE COURT: You had until September 27, 2008 within which to file [a motion to reinstate], yet no action was taken by you for that entire year. You alleged in your affidavit that you became ill the... first week in September and you were not released from the hospital until October 2nd or 3rd.
The question is you had a whole year. You had no mental incapacity. You had no physical incapacity. There was no reason why the motion to restore was not filed during that entire period. You focus only on the last two weeks when you became ill as documented by your pleadings. What about the rest of the year?
[PETITIONER'S COUNSEL]: Well, the claim petition was not reinstated -
THE COURT: What about the rest of the year, counselor[?]
[PETITIONER'S COUNSEL]: Well, the claim petition -- to answer your question, your Honor -- the claim petition was not reinstated earlier for tactical reasons*fn2. [Emphasis added.]
This undisputed plan of deliberate delay was also corroborated by counsel's admission that he entered in his diary a reminder to hand deliver a motion to reinstate on Monday, September 8, 2008, approximately two weeks before the time to move would expire.
Notwithstanding this conscious plan to postpone filing a motion to reinstate, petitioner claims the judge was obliged to grant the motion because counsel's intervening illness toward the end of the one-year period -- requiring his hospitalization on Sunday, September 7, 2008 and preventing his return to work until Monday, October 3, 2008 -- frustrated that plan. We disagree.
N.J.S.A. 34:15-54 suggests no exception to the one-year requirement for the filing of motions for reinstatement of a workers' compensation action dismissed for lack of prosecution. However, our courts have recognized that compensation judges possess the inherent power to excuse the one-year time bar upon the grounds set forth in Rule 4:50-1. See, e.g., Beese v. First Nat'l Stores, 52 N.J. 196, 200 (1968); Estelle v. Bd. of Educ. of Red Bank, 14 N.J. 256, 261 (1954); Stone v. Dugan Bros. of N.J., 1 N.J. Super. 13, 16-17 (App. Div. 1948). We reject petitioner's argument that the circumstances deemed excusable in Beese are similar to those presented here.
In Beese, the Court found that petitioner's delay in moving for reinstatement was brought about by her hospitalization for "paranoid schizophrenia"; Beese's mental condition incapacitated her during the one-year statutory time period for moving for reinstatement. 52 N.J. at 198-99. As the Court observed, Beese's attorney spoke to her on several occasions but "couldn't appear to make her comprehend what I was telling her." Id. at 199. Beese testified at a hearing regarding the motion to reinstate that she "knew nothing about the 1964 dismissal of her petition until she learned about it in 1966." Ibid. The Court found petitioner's incapacitation and her attorney's failure to take appropriate steps in light of her condition to be sufficient to excuse petitioner from the consequences of her delaying in seeking reinstatement. Id. at 199-200.
Here, there was no impediment to the filing of a timely motion for reinstatement for nearly the entire one-year statutory period. Despite the considerable age of most of the petitions in question, and despite the fact that they still were not capable of being moved due to petitioner's failure to provide discovery, petitioner here did nothing but adopt a deliberate course of delay, choosing to expend as much of the one-year period as possible without taking action. The fact that petitioner's attorney's unanticipated illness proved untimely and struck at a critical moment is of no consequence. Even if counsel's inactivity between September 7 and October 3, 2008 was excusable, his conscious and deliberate inaction from September 27, 2007 until September 6, 2008 was inexcusable. An attorney's neglect or inadvertence is not ground for relief pursuant to Rule 4:50-1(a). See, e.g., Baumann v. Marinaro, 95 N.J. 380, 394 (1984); Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971).*fn3