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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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