Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
New Jersey Superior Court Appellate Division decided
April 22, 2016.
Self-Representation Can Be Risky in Workers Compensation Cases
Should you listen to your attorney and follow the procedure outlined by him or her in the correspondence you review? In today’s legal environment and rule based practice there are so many procedural requirements you as the lay person is not aware of. These are pitfalls for the individual who represents himself and/or decide not to follow the instructions of his attorney. This case is a perfect example.
In this case the petitioner was injured in the course of his employment. As per the appropriate procedure he received authorize medical treatment by his employer. After he was discharged from treatment and declared reaching a level/plateau labeled ‘Maximum Medical Improvement’, also known as “MMI”, the petitioner was to be examined by his own doctor and the employer’s doctor for the purposes of determining permanency.
When the petitioner failed to attend his own exam, and or that of the defense/employer, the defense attorney immediately filed a Motion to Dismiss the Case. The court granted the motion to dismiss this petitioner’s case in 2013 and the petitioner did nothing. Unfortunately, this means the petitioner only has one year from the date of dismissal to have his case reinstated and comply with the procedure to submit a medical exam determining the nature and extent of his permanent injury. Once this petitioner got back on the ball and decided to undergo the examination and submit the report to the defense attorney the year was practically up.
Apparently he hired an attorney thereafter and/or decided to comply with his attorney’s instructions and the appropriate Motion to Reinstate the petition was filed.
Unfortunately one year and one day pass by the time the actual motion was filed and stamped in the Worker’s Compensation clerk’s office. The one year procedural statute of limitations is strictly applied to all cases.
Fortunately for the petitioner, in this case, the court took testimony, reviewed the facts and learned that the motion was received by the court the day before the limitations period ran but was marked filed a day after the statutory time. Identified by NJSA 34:15–54, there are no exceptions for the one year requirement of a petitioner to file a Motion to Reinstate his case.
The Appellate Division affirmed the trial court/Worker’s Compensation Court’s inherent ability to reopen a judgment on grounds of fraud, mistake, inadvertence or other equitable grounds. However, in order to do so the court’s decision must not be arbitrary or based on a whim. Rather, it must have a legally adequate motivating element that is clear. In this court decision the Appellate Division affirmed the judges oral decision that the motion was timely and he satisfied the statutory high burden was met because the the delay in filing was due to the specific injury of the petitioner.
What is a shame is the dismissal was in 2015 and it was finally decided in 2016. This is already after the one year lapse in time of the petitioner not doing anything and sitting on his rights.
What is the practical effect of this decision? My office sends out a very specific multi page letter to petitioners once we file the claim petition.
It lays out the required procedure and Worker’s Compensation cases.
Routinely the defense attorneys are filing motions to dismiss after a petition or fails to appear at one medical exam. 98% of the time this is a billing event. Why? Because the petitioner either was sick or was at work or just couldn’t make the initial defense doctor exam. However, if the petitioner misses a second exam the respondent will not move consent to reinstate the case and this is the ultimate result. There are numerous defense law firms in the region that routinely follow these motions as the “billing event”. You must be vigilant to protect your rights on an ongoing and regular basis or you will be placing your case at risk for being dismissed, and ultimately dismissed with prejudice without the help of reopening same.
If you have any questions please call my office to discuss this and any other workers compensation case you may have.
Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office