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Thomas Earomirski, Jr v. Dhl/Airborne Express


October 17, 2011


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 1999-7650.

Per curiam.


Argued August 30, 2011

Before Judges Payne and Messano.

Respondent Thomas Earomirski was injured in 1999 while employed as a truck driver by appellant DHL/Airborne Express (DHL). He filed a petition in the Workers' Compensation Division, and, on December 22, 2003, an order approving settlement was entered awarding him 52-1/2% of partial total disability, apportioned as follows: 45% of partial total for his lower back; 2-1/2% of partial total for his hip; and 5% for neuropsychiatric injuries. Included in the award was compensation for the sequelae of a post-operative brain hemorrhage. Earomirski received the last payment on the award in November 2005.

On June 23, 2008, Earomirski filed an application seeking review and modification of the previously-entered order. See N.J.S.A. 34:15-27 ("A[n] . . . 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.").*fn1 DHL moved to dismiss, arguing that the request was barred by the statutory two-year limitations period.

In opposing the motion, Earomirski relied upon certain medical reports that formed the basis of the re-opener application. On February 7, 2007, Earomirski was taken to the emergency room after his wife found him at home in an unresponsive state. Dr. Alan D. Deutsch, D.O., saw him in the hospital and considered the possibility that Earomirski had suffered an "'unwitnessed seizure.'" However, a CAT scan revealed no bleeding in the brain, and a subsequent EEG was negative.

In December 2007, in anticipation of surgery to treat aggressive stage three prostate cancer, Earomirski saw Deutsch again for the purposes of obtaining neurological clearance. Another EEG was performed, and Deutsch opined that based upon those results, Earomirski's reported interim history of memory loss, and the February 2007 incident, "clinical seizure [wa]s highly suspected." In July 2008, in a letter supplied to the Motor Vehicle Commission, Deutsch diagnosed Earomirski with "partial complex seizures with abnormal EEG" and opined that it was the "result of an intracranial hemorrhage."

Dr. Vin Gooriah conducted an evaluation of Earomirski at the behest of petitioner's counsel. In a June 9, 2008 report, Gooriah concluded that Earomirski was "100% totally and permanently disabled from all causes," and that there was "a clear association between intracranial hemorrhage and the development of seizure disorder and headache."

Before the compensation judge, Earomirski contended that the Court's holding in Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 262 (2003), applied, i.e., "an accidental injury for reporting and filing purposes [under the Workers' Compensation Act] has not occurred until the point at which a reasonable person would know he had sustained a compensable injury." In short, Earomirski did not know he had sustained a worsening of his original compensable injury until, at the earliest, December 2007 when Deutsch opined as to the relationship between the earlier brain hemorrhage and the development of a complex seizure disorder.

DHL countered by arguing that Brunell's discovery rule did not apply to re-openers. Under N.J.S.A. 34:15-27, compensation for any increased incapacity caused by the worsening of a prior compensable injury presumed knowledge of the existence of the injury in the first instance. And, the Legislature had limited the workers' ability to seek compensation for a worsening of the original condition to two years. DHL argued this case was more similar to the facts presented by Adams v. New York Giants, 362 N.J. Super. 101 (App. Div.), certif. denied, 178 N.J. 33 (2003). There, distinguishing Brunell, we held that "while [the petitioner] clearly did not anticipate the severity of his disability ten years after the accident, he either was aware or, as a reasonable person, should have been aware of the disabling nature, seriousness and probable compensable character of his injury well before two years preceding his filing of a claim for compensation." Id. at 111-12.

Without extensive discussion, the compensation judge denied DHL's motion to dismiss. DHL's subsequent motion for reconsideration was also denied. This appeal followed.

DHL has reiterated the same arguments before us. We have considered them in light of the record and applicable legal standards. Because it seeks review of an interlocutory order and no motion for leave to appeal was filed by DHL, and because any review based on the current record would be imprudent, we dismiss the appeal without prejudice.

"Any party may appeal from the judgment of a judge of compensation to the Appellate Division of the Superior Court, which appeal shall be taken in accordance with the rules of court." N.J.S.A. 34:15-66; see also R. 2:2-3(a)(2) (providing for appeals as of right to the Appellate Division from "final decisions or actions of any state administrative agency or officer"). It is beyond peradventure that the two orders under review were not "judgment[s]" or "final decisions."

At oral argument before us, DHL argued that the appeal was cognizable as of right because the compensation court lacked jurisdiction to consider the re-opener application in the first instance. See Bey v. Truss Systems, Inc., 360 N.J. Super. 324, 327 (App. Div. 2003) ("The two year time limit mandated by N.J.S.A. 34:15-27 for submitting an application for review or modification is a jurisdictional requirement."). However, that contention only provides a basis for requesting this court to exercise its discretion and grant leave to appeal. See R. 2:2-4. DHL never filed a motion for leave to appeal.

We have, on occasion, treated the notice of appeal from an interlocutory order as an application for leave to appeal and granted leave to appeal as within time. See R. 2:4-4(b)(2). However, the exercise of our discretion in this regard has been reserved for "extraordinary circumstances and in the public interest." Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:2-4 (2012).

Leave to appeal from an interlocutory order "is permitted only 'in the interest of justice.'" Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (quoting R. 2:2-4). We acknowledge that a party seeking to meet "this stringent standard" may succeed by demonstrating that "the appeal, if sustained, will terminate the litigation and thus very substantially conserve the time and expense of the litigants and the courts . . . ." Ibid. (internal quotation marks omitted) (quoting Romano v. Maglio, 41 N.J. Super. 561, 568 (App. Div.), certif. denied, 22 N.J. 574 (1956), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720 (1957)). DHL essentially makes this argument, i.e., if we grant leave to appeal and reverse the orders on jurisdictional grounds, the litigation will terminate.

However, both parties acknowledge that the two cases they respectively rely upon, Brunell and Adams, did not involve the re-opener statute. Indeed, neither party has cited a case in which the "discovery rule," adopted by the Court in Brunell and applied to accidental injuries, has been either applied or rejected, to the limitations period contained in N.J.S.A. 34:15-27.*fn2

As noted above, the record before us is quite sketchy. The compensation judge did not take any testimony, for example, from Earomirski regarding the onset of symptoms, if any, between his post-operative hemorrhage and the February 2007 incident involving the collapse in his home. If indeed the Court's analysis in Brunell applies to re-openers, the record is devoid of any evidence as to whether Earomirski knew, or reasonably should have known, that his "incapacity . . . ha[d] subsequently increased." N.J.S.A. 34:15-27; see, e.g., Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 336-37 (2011) (recognizing application of the "discovery rule" in various settings and the efficacy of a hearing when issues regarding the plaintiff's knowledge are disputed). The medical records are limited, there was no medical testimony taken when the initial petition was settled, and DHL has not performed any examination or evaluation of Earomirski regarding his most recent health complications.

In short, while we recognize our decision to dismiss the appeal as interlocutory will likely result in additional time and expense for both parties, a more complete record will enhance consideration of the novel legal question presented.

The appeal is dismissed without prejudice.

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