April 21, 2011
JOSIAH M. ONYEBUCHI, PETITIONER-APPELLANT,
MARK LIGHTING COMPANY, RESPONDENT-RESPONDENT.
On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 12, 2010
Before Judges Graves and Waugh.
Petitioner Josiah Onyebuchi appeals from an order of the Division of Workers' Compensation (the Division) denying his motion to reinstate his employee claim petitions. We reverse and remand for a hearing on the merits.
Petitioner's employment as a packer for defendant Mark Lighting Company (Mark Lighting) involved bending, pulling, and lifting various items throughout the course of each workday. During 2002 through 2004, petitioner filed multiple claims for benefits under the New Jersey Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128. In a certification in support of a motion for temporary disability benefits and medical treatment, petitioner summarized his work-related injuries, which occurred between December 10, 2002, and December 15, 2003, as follows:
I have had numerous accidents; to wit: December 10, 2002, I was hit by a staple gun in the head; September 24, 2003, I hurt my back while pulling a box; February 4, 2003, while lifting a box, I injured my right knee and lower back. February 24, 2003, while pulling merchandise, I injured my back and right knee; September 24, 2003, while lifting a box, I injured my right [knee] and lower back; November 1, 2003 while lifting a box, I injured my lower back and right [knee]; December 15, 2003 while lifting a heavy box, I felt pain in my right knee and lower back.
In the same certification, petitioner stated he was experiencing pain and stiffness in his lower back, swelling and pain in his right knee, and severe headaches and dizziness. In addition, petitioner claimed his "thinking [was] not clear" and that he "had memory lapses." Petitioner asked the workers' compensation court to reinstate his temporary disability payments, and he submitted a written report by Dr. Theodora Maio in support of his motion. In an answering statement dated May 13, 2005, Mark Lighting noted that petitioner had "been under almost continuous treatment for various complaints," and argued that he had "reached maximum benefit there from."*fn1
On May 16, 2005, Cheryl Wong, M.D., examined petitioner and determined that there was a "significant impairment in social and occupational functioning." Wong diagnosed petitioner with "[p]ost-concussive disorder with gross ataxia and post-traumatic vertigo with speech difficulties, perseveration and stuttering, and cognitive dysfunction."
On September 7, 2005, petitioner's brother, Peter Onyebuchi, who lives in Texas, notified petitioner's attorney that he "brought [petitioner] to Texas [on] 9/3/05 due to depression, and to further continue his medical treatment." A social services assessment conducted on September 3, 2005, by the Arlington Memorial Hospital confirmed that petitioner was in need of social services, and the Texas Department of Assistive and Rehabilitative Services subsequently referred petitioner to Edward G. Bleker, Ph.D., for a neuropsychological evaluation.
In his report, Bleker noted that petitioner was "a forty-five Nigerian male whose presenting problem . . . was an on-the-job traumatic brain injury in 2002, as well as depression." Bleker determined that petitioner's "ability to initiate and terminate behavioral sequences effectively [was] severely restricted, and his capacity to monitor his own behavior and adjust to changing circumstances with advanced planning for unanticipated consequence [was] . . . almost non-existent."
In a letter dated May 16, 2006, the Social Security Administration notified petitioner that he had satisfied "the medical requirements for disability payments." In addition, petitioner returned to New Jersey in 2006 for evaluations by Dr. Josephs and Dr. Gross on behalf of Mark Lighting. Petitioner was also reevaluated by Dr. Maio for the injuries to his lower back and right knee, and by Dr. Wong for any neuropsychiatric disability. Based on petitioner's "orthopedic, neurological and psychiatric difficulties," Wong concluded that he was "totally disabled as a functioning working unit." She also stated that "the accidents of 12/10/2002, 02/24/2003, 09/24/2003, 11/01/2003 and 12/15/2003 were the proximate cause of her findings and conclusions.
On August 30, 2007, the compensation judge signed a pretrial memorandum, which was also signed by the attorneys for both parties. The memorandum referred to each of the accidents that had occurred between December 10, 2002, and December 15, 2003, and it indicated that the only issues in dispute were the nature and extent of petitioner's disability.
In a letter to the Division dated September 7, 2007, petitioner's attorney requested that the matter be scheduled for trial on October 11, 2007, so that petitioner's brother, Peter, could arrange "to bring the petitioner to New Jersey to testify in court." However, petitioner did not appear for trial on that date, and the matter was again listed for trial on November 1, 2007, January 3, 2008, and March 6, 2008.
On February 4, 2008, Mark Lighting filed a motion to dismiss all of the claim petitions for lack of prosecution. On March 7, 2008, while the dismissal motion was pending, the Texas Department of Family Services filed an emergent application for protective services in the Probate Court of Tarrant County, Texas. That application alleged that petitioner was "physically or mentally incapable of consenting to necessary services," based on the following circumstances:
Mr. Josiah Onyebuchi has lived with his brother Peter Onyebuchi since 2004. Mr. Onyebuchi['s] brother became Mr. Onyebuchi's caregiver when Mr. Onyebuchi suffered a Traumatic Brain Injury in New Jersey. He moved Mr. Onyebuchi to Texas and assumed the role of his caretaker. Initially, client's brother was willing to assist Mr. Onyebuchi with completing all his activities of daily living which included cooking, cleaning, administering his medications, handling all Mr. Onyebuchi's finances and taking Mr. Onyebuchi to all doctor appointments. However, for the past 6 months, client [has] refused all of his brother's assistance.
According to his brother Mr. Onyebuchi will not get off couch and refuses to bathe. According to his brother, Mr. Onyebuchi has not bathed in the last 6 months. He also refuses to change his clothes and has had on the same clothing for the past 6 months. Mr. Onyebuchi will not eat any food other then bread and peanut butter. According to Mr. Onyebuchi's brother he has lost over 50 pounds in last 6 months. Mr. Onyebuchi will not take medications, and he will not go to any doctors appointments. Mr. Onyebuchi will only move off the sofa to use the restroom. Mr. Onyebuchi's brother contacted Emergency Medical Services on 3-4-08 at 11:00 A.M. Mr. Onyebuchi refused to allow himself to be transported to the hospital. Client was diagnosed by paramedics as "failure to thrive." . . . Mr. Peter Onyebuchi is no longer willing to be his caretaker.*fn2
On March 7, 2008, the presiding judge of the Probate Court entered an ex parte emergency order, granting the application for protective services. Consequently, petitioner was placed in a nursing home in Fort Worth, Texas.
Twenty days later, on March 27, 2008, a judge of compensation granted the motion by Mark Lighting to dismiss petitioner's claims for lack of prosecution. The judge noted that "a social services division in Texas" had removed petitioner from his brother's home and that petitioner was not able to appear in court due to "personal" difficulties that were not related to "any injuries that were sustained at Mark Lighting Fixtures." The order stated that the dismissal was without prejudice. Eight months later, on December 30, 2008, petitioner's attorney filed a motion to reinstate petitioner's claims. However, no medical records or reports were provided to the court at that time. Instead, petitioner's attorney relied solely on his own certification, which stated:
1. I am an attorney at law of the State of New Jersey, and fully familiar with the facts of this case.
2. My adversary filed a Notice of Motion to dismiss the within matter for lack of prosecution. Said matter was subsequently dismissed without prejudice on March 27, 2008.
3. Petitioner has certain psychiatric/mental issues arising out of the within matter, for which he has been receiving treatment.
4. The Petition was dismissed . . . based on Petitioner's unavailability to return to New Jersey. Petitioner is now in a position to travel to New Jersey from his residence in Texas to testify in this matter.
5. For the foregoing reasons, it is respectfully requested that the within Petition be reinstated to the active pre-trial list.
During a conference with the court on March 30, 2009, the attorneys for the parties agreed to a preemptory trial date on June 8, 2009. It was further agreed that if petitioner failed to appear for trial, his motion to reinstate his claim petitions would be denied.
Petitioner did not appear for trial on June 8, 2009. Instead, petitioner's attorney faxed a letter to the court from Ira O. Murchison, D.O., petitioner's doctor in Texas. Murchison stated: "Mr. Josiah Onyebuchi is under my care for panic attacks. He is unable to fly due to this condition. If any additional information is needed, please feel free to contact me at my office."
During the court proceeding on June 8, 2009, the judge noted that petitioner had "moved out of state" and that he had "a psychiatric problem." Nevertheless, the court denied petitioner's motion to reinstate his cases because petitioner's attorney had agreed to the preemptory trial date and the cases had a "rather torturous history."
On appeal, petitioner contends the court erred in denying his motion "because he was suffering from a disability which prevented him from appearing in court to prosecute his claims." In addition, petitioner argues that the workers' compensation court should have either heard and determined his claims "based on the proofs available," "or explored other options to accommodate his disability." We agree.
Pursuant to N.J.S.A. 34:15-34, claim petitions can be "reinstated for good cause shown" within one year of their dismissal. Moreover, our courts have emphasized the need to consider the equities involved in each case:
Irrespective of the absence of express statutory authority and a one-year limitation imposed upon such a reopening in certain circumstances, N.J.S.A. 34:15-54, it is abundantly clear that the Division has the inherent power, "comparable to that possessed by the courts (R.R. 4:62-2 [now R. 4:50]), to reopen judgments for fraud, mistake, inadvertence, or other equitable ground." Beese v. First National Stores, 52 N.J. 196, 200 (1968). See also Estelle v.
Red Bank Bd. of Ed., 14 N.J. 256 (1954);
Stone v. Dugan Brothers of N.J., 1 N.J. Super. 13 (App. Div. 1948).
On the other hand, it is equally clear that a decision to reopen must not be arbitrary or based on whim. . . . It follows that in consideration of such procedure, attention to the equities involved is imperative.
Beese v. First National Stores, supra 52 N.J. at 200-201. [Hyman v. Essex Cnty. Carpet Cleaning Co., 157 N.J. Super. 510, 516 (App. Div. 1978) (alteration in original).]
In this case, the compensation court was aware of petitioner's claim that his psychiatric problems were caused by a work-related injury when it denied petitioner's motion to restore his claim petitions because petitioner's attorney had certified that petitioner was suffering from "psychiatric/mental issues arising out of the within matter." The court was also aware that petitioner was unable to fly to New Jersey because he was suffering from panic attacks. Moreover, it is now clear that petitioner was incapacitated in Texas when his claims were initially dismissed on March 27, 2008, and that his brother was subsequently appointed to serve as petitioner's guardian by a court in Texas. Under these circumstances, we find that the equities are "sufficiently strong" to warrant an adjudication on the merits.*fn3 Beese, supra, 52 N.J. at 200.
In view of the foregoing, the order denying petitioner's motion to restore his claim petitions is reversed; the petitions alleging work-related injuries on various dates between December 10, 2002, and December 15, 2003, are reinstated; and the matters are remanded to the Division for further proceedings consistent with this opinion.