GIUSEPPE ZITO v. AIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1070-10T2

GIUSEPPE ZITO,

Petitioner-Appellant,

v.

AIC,

Respondent-Respondent.

________________________________

September 26, 2011

Argued June 6, 2011 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. No. 2008-6134.

D. Gayle Loftis argued the cause for appellant.

Michelle L. Duffield argued the cause for respondent (Capehart & Scatchard, P.A., attorneys; Ms. Duffield, on the brief).

PER CURIAM

Petitioner Giuseppe Zito appeals from the dismissal of his petition for workers' compensation benefits from respondent AIC, his former employer, arising from injuries he sustained during the course of his employment. The judge of the Division of Workers' Compensation dismissed his petition on motion of AIC because the petition was filed more than two years after his last receipt of benefits. We now affirm.

Zito began working as a mechanic for AIC in 2002. On June 18, 2004, he injured his back at work while lifting manhole covers. At the time of this accident, Zito was twenty-nine years old. He was seen at Hackensack Hospital, after which he followed up with a Dr. Strika. He was later referred to Dr. John Marinkovic, who treated him for one or two weeks. At some point, Zito requested medical treatment from AIC, reporting his injury to Joanne Patrino. On July 6, 2004, Dr. Samuel J. Snyder, an authorized workers' compensation treating physician, evaluated Zito and issued a report dated July 9, 2004, to Gloria Treihart of Horizon Casualty Services (Horizon), the third-party administrator (TPA) for AIC's workers' compensation carrier. He advised that Zito was "showing signs and symptoms of lumbosacral strain and sprain," but Dr. Snyder found that Zito's x-rays were "completely normal and do not show any post[-]traumatic abnormalities." Dr. Snyder recommended medication and physical therapy.

Dr. Snyder evaluated Zito again on September 14 after Zito completed seven weeks of physical therapy. Dr. Snyder reported to Treihart that Zito was "at maximum medical improvement" and discharged him from care.

On November 22, 2004, Zito underwent an IME with Dr. Rodney W. Cranston to determine permanency. Dr. Cranston reported to Treihart that Zito's gait, stance, lateral bending, and extension were normal. He noted Zito's previously described treatment and an MRI from July 22 which "demonstrate[d] a moderate central right extrusion type of disc herniation at L4-5" and three minor disc extrusions at adjacent levels. However, in Dr. Cranston's opinion, Zito was "currently stable." He opined that Zito had partial permanent disability of seven and one-half percent of total.

On February 22, 2005, Treihart sent Zito a letter, which referenced an incorrect claim number, an incorrect name of the insured/employer, and an incorrect February 21, 2004, date of accident. She wrote,

We are currently in receipt of Dr. Cranston's report of 11/22/04 exam which estimates disability at 7-1/2% of partial total. Under separate cover we will be issuing you a voluntary offer and tender of 7-1/2% which equals 45 weeks @ 173.00 per week or $7,785.00. We will be paying you for the time accrued from 6/19/04-2/26/05 which equals 36 weeks @ 173.00 which totals $6,228.00. The balance of 9 weeks will be paid every 4 weeks until the full amount is paid.

Further medical treatment is considered unauthorized. Please be guided accordingly.

Thereafter, Zito received and endorsed three checks from Horizon dated February 23, March 23, and April 20, 2005, in the amounts of $6228, $692, and $865 respectively. Zito lost his job when AIC closed its operations and he then began working for Hertz Rental as a mechanic. According to Zito, several months after receiving Treihart's letter, he contacted her by telephone to advise that he "was in pain and needed more treatment, but her response . . . simply was that the case was closed and that [he] should get treatment on [his] own." Zito did so and had a second MRI on September 21, 2005, which indicated that his condition did "not appear significantly changed as compared" to his July 2004 MRI.

Zito suffered another back injury while moving a piece of glass for Hertz on December 18, 2006. He had an IME in April 2007, and the doctor noted that Zito's back pain dated back to his 2004 injury with subsequent "exacerbations," including his 2006 injury. The doctor concluded, in part, that Zito had a "degenerative disc disease with associated mechanical back pain," which he "would not specifically correlate . . . with a single incident occurring at work," and opined that Zito should "obtain additional management of this condition through his personal health insurance." At the suggestion of a co-worker, Zito first consulted an attorney about his injuries in 2007, who then filed a claim petition on Zito's behalf for his 2006 injury on August 20, 2007.

Zito's attorney filed a claim petition for Zito's 2004 injury on March 5, 2008, almost three years after Zito received his last check from Horizon. The attorney, relying on Treihart's February 22, 2005, letter, reported her erroneous claim number and erroneous date of accident on the claim petition. His amended July 15, 2008, claim petition reflects the correct information. AIC raised a statute-of-limitations defense in both of its answers and then moved for a dismissal of the petition based on this defense.

Zito's counsel submitted her own affidavit in opposition to AIC's motion on January 30, 2009.1 She averred that Zito told her "that he suffers from dyslexia and cannot read maps, manuals or most other written materials"; his "writing skills are largely restricted to writing his name, address and telephone number." She claimed that Zito could not read Treihart's letter, and "he was not able to question the accuracy of its contents." She also claimed that Horizon had "indicated to a largely illiterate [Zito] that he should get treatment on his own after providing, and then terminating, authorized treatment, and gave the unrepresented [Zito] no information that would have permitted him to protect his rights."

In a July 28, 2010, certification, Zito's counsel asserted that the checks sent in 2005 did not contain any information "that would have indicated a date of accident, a claim number or the identity of the employer." She argued that the information provided in Treihart's letter "was inaccurate in almost every respect, [and] did not permit [Zito] to pursue any remedies he may have been able to exercise had he been able to read, or had someone able to explain to him what the effect of [Treihart's] letter might have been."2

Zito submitted his own July 29, 2010, affidavit in which he certified that he had "suffered from severe dyslexia" since childhood and that school records, which he appended to his affidavit, indicated that he "was classified as having a neurological and perceptional impairment" and had been placed in special education programs. At one time, he was excused from jury duty due to his "dyslexia and impairment of . . . listening, comprehension and auditory memory." He did not certify that he did not understand his right to treatment for a work-related injury or that he was somehow misled by the misinformation in Treihart's letter to him.

Zito's appended school records confirm his dyslexia and corresponding learning difficulties, particularly in reading and auditory memory. Test results from 1987 on the WISC-R reflect that Zito had a low-average verbal IQ, a high-average performance IQ, and an average full scale IQ. He had the most difficulty on an auditory memory subtest measuring his ability to recall sequences of digits.

Dr. Damon M. Fellman completed a neurological report as part of Zito's 1989 high school re-evaluation, concluding that Zito

shows evidence of neurologic dysfunction in the form of an organically based learning disability manifest by dyslexia. The term is used in the sense that this youngster has major problems with reading and spelling, far out of proportion to his overall intellectual capabilities and this will be a lifetime problem for [him] . . . .

Intellectual capabilities are within the normal range, but he will continue to need an individualized educational program.

[(Emphasis added).]

Dr. Fellman recommended an educational classification of "neurologically impaired or perceptually impaired."

Zito also submitted a brief on or about July 28, 2010. He argued that the statute of limitations should be tolled under the "insanity clause" of N.J.S.A. 34:15-27 because his dyslexia "interfered with his ability to understand his legal rights and his ability to institute legal action." No competent evidence supports this latter factual assertion.

AIC submitted its brief on September 27, 2010, and argued that Zito's learning disability should not toll the statute of limitations because "there is no basis to consider a person with a learning disability such as dyslexia as 'insane.'" School records indicated that Zito's intellectual capabilities are within the normal range, thus, "there is absolutely no evidence that [he] is unintelligent or incapable of understanding his legal rights or suffers from an inability to institute legal action." Finally, AIC analogized Zito to a petitioner who cannot speak or read English but who would still be bound by the statute of limitations.

Without oral argument, the judge entered an order on October 13, 2010, granting AIC's motion and adopting the arguments set forth in AIC's brief. This appeal was filed on October 27 and on November 9 the judge supplemented her decision pursuant to Rule 2:5-6(c). She reasoned that Zito's claim was barred by the statute of limitations found in N.J.S.A. 34:15-51 because more than two years had elapsed since the last compensation payment. She noted that the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127, does not define "insane." After quoting a dictionary definition of the term, she concluded that "it is clear that [Zito] does not qualify as 'insane.'" She found that Zito "has entered into contractual relationships; he is married;[3] he is employed; he has a bank account;[4] he retained counsel to represent him." In 1989, Dr. Fellman found his "'intellectual capabilities to be within the normal range.'"

The judge also found that the cases cited by Zito did not support his argument, and concluded:

There is no evidence that [Zito] is unintelligent, incapable of understanding his legal rights or suffers from an inability to institute legal action. In fact, [he] has a companion claim for a subsequent accident that was timely filed. [He] fails to adequately explain why he was capable of instituting a timely claim for the December 18, 2006 accident and not for the 2004 accident. The court suspects that [Zito] was satisfied with the voluntary offer made relative to the 2004 accident and saw no need [to] file a formal claim petition. It was only after [he] consulted counsel regarding the most recent accident that this became an issue.

[AIC's] counsel makes an excellent point that dyslexia has no bearing on one's intelligence or ability to understand one's legal rights. It is a learning disability. [Zito's] situation is no different from that of a petitioner who does not speak English and who does not read English. Such a petitioner would still be bound by the statutory time frame for filing a claim petition. If we carve out an exception to the statute of limitations for someone with a learning disability of dyslexia it would open the door for an onslaught of other exceptions being carved out. The court's jurisdiction is limited and cannot be inflated by consent, waiver, estoppel or judicial inclination. Nagy v. Ford Motor Co., 6 N.J. [341,] 349 (1951).

In this appeal, Zito contends that N.J.S.A. 34:15-27 with its tolling provision for insane persons should have been applied to determine the timeliness of his petition, especially in light of the remedial purposes of the Workers' Compensation Act. He also argues that Treihart's letter contributed to his failure to timely file his petition and, thus, AIC should be estopped from asserting a statute-of-limitations defense.

The scope of our review of a workers' compensation judgment is well established:

The standard for appellate review of a workers' compensation judge's determination is equivalent to that used for review of any nonjury case, which requires the reviewing court to determine whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise. An agency's interpretation of a statute, however, although entitled to some weight, is not binding on the reviewing court.
 
[Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (citations omitted).]

In his first point on appeal, Zito argues that the statute of limitations should be tolled "as the disabilities with which he was diagnosed as a child interfere with his ability to understand his legal rights or to institute legal action, and may be considered to be within the scope or equivalent of the legal definition of insanity as used in [N.J.S.A.] 34:15-27." He urges that his neurological, perceptual, and auditory memory impairments impact his comprehension and retention of written material and affected his ability to timely file his petition. This is particularly so, he urges, due to the incorrect information contained in Treihart's letter, which "did not relay any information to the reader of the significance of the payments, or of any effect that . . . delay on action would have on his cause of action or recovery in the compensation court."

AIC responds that the judge's decision was supported by substantial credible evidence in the record and no exceptions for tolling the statute of limitations apply. It contends that the cases on which Zito relies "are taken completely out of context," and repeats its earlier arguments to the compensation court, which were adopted by the judge. Namely, "dyslexia has no bearing on one's intelligence or ability to understand one's legal rights," as proven by Zito's school records. Thus, Zito should be "bound by the statutory time for filing a claim."

Pursuant to N.J.S.A. 34:15-51, an initial claim for workers' compensation benefits must be filed

within two years after the date on which the accident occurred, or . . . in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation . . . . A payment, or agreement to pay by the insurance carrier, shall for the purpose of this section be deemed payment or agreement by the employer.

This two-year filing period is a jurisdictional requirement. Schwarz v. Fed. Shipbuilding & Dry Dock Co., 16 N.J. 243, 248 (1954). The jurisdiction of the Workers' Compensation Court "is limited to that granted by the Legislature and therefore cannot be inflated by consent, waiver, estoppel or judicial inclination." Bey v. Truss Systems, Inc., 360 N.J. Super. 324, 327 (App. Div. 2003) (internal citation omitted).

The statutory provision on which Zito relies provides, in pertinent part:

An agreement for compensation may be modified at any time by a subsequent agreement. A formal award, determination and rule for judgment or 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. If any party entitled to a review under this section shall become insane within the aforesaid 2-year period, his insanity shall constitute grounds for tolling the unexpired balance of the 2-year period, which shall only begin to run again after his coming to or being of same mind.

[N.J.S.A. 34:15-27 (emphasis added).]

The tolling exception for insanity was adopted by the Legislature in 1976 in response to Polcaro v. City of East Orange, 63 N.J. 548 (1973), reversing our decision reported at 121 N.J. Super. 325 (App. Div. 1972). Polcaro sought to toll the two-year statute of limitations for "review or modification" found in N.J.S.A. 34:15-27 because of mental incapacity arising from a work-related head injury. Polcaro, supra, 121 N.J. Super. at 326-27. That head injury led to Polcaro's institutionalization and a prefrontal lobotomy. Ibid. We concluded that the then-existing language of N.J.S.A. 34:15-27 did not allow tolling of the limitations period based on Polcaro's mental incapacity. Id. at 327. However, the Supreme Court reversed and remanded, in part, "to try and determine the question whether the injuries sustained in the employment prevented the claimant from making a seasonable application to reopen, or a seasonable application for compensation for increased disability." Polcaro, supra, 63 N.J. at 548.

N.J.S.A. 1:1-1 provides general instructions for judicial construction of statutes and laws in New Jersey.

In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. Technical words and phrases, and words and phrases having a special or accepted meaning in the law, shall be construed in accordance with such technical or special and accepted meaning.

When a court is called upon to construe a statute, determining the Legislature's intent is the paramount goal and generally the best indicator of that intent is the statutory language itself. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). We begin with the words of the statute and ascribe to them their ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008). We will read these words in context with related provisions so as to give sense to the legislation as a whole. DiProspero, supra, 183 N.J. at 492.

"It is not [our] function . . . to 'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). We "cannot 'write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment.'" DisProspero, supra, 183 N.J. at 492 (quoting Craster v. Bd. of Comm'rs, 9 N.J. 225, 230 (1952)). Nor may we "'engage in conjecture or surmise which will circumvent the plain meaning of the act.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). Therefore, if the meaning of those words is clear, the analysis is complete, and we need look no further. Mason, supra, 196 N.J. at 68.

While courts generally afford an agency's interpretation of its own regulations substantial deference, In re Freshwater Wetlands General Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005), statutory and regulatory construction is a purely legal issue subject to de novo review. See Klawitter v. City of Trenton, 395 N.J. Super.302, 318 (App. Div. 2007) ("Because the issue involves the interpretation of statutes and regulations, it is a purely legal issue, which we consider de novo."); see alsoIn re Ross, 400 N.J. Super. 117, 121 (App. Div. 2008) ("Because this is a statutory interpretation issue, the standard of review is de novo.").

Here, the plain language of N.J.S.A. 34:15-27 provides Zito with no safe harbor from the consequences of his failure to file a timely petition. In the first instance, his petition is an initial claim, not a petition to reopen, because there was no "formal award, determination [or] rule for judgment or order approving settlement" to reopen. Thus, N.J.S.A. 34:15-27 does not apply to the facts before us.

Second, even if that statutory provision somehow applied, Zito did not "become insane" within the two-year period specified by N.J.S.A. 34:15-27. Thus, he would not be entitled to the benefit of its tolling provision. As such, we need not consider whether Zito's learning disabilities fall within the scope of the term "insane" found in N.J.S.A. 34:15-27.

Finally, we cannot import the tolling provision of N.J.S.A. 34:15-27 into N.J.S.A. 34:15-51 governing initial claim petitions. The Legislature obviously could have amended both statutory provisions in 1976 but chose not to do so; we are bound by that choice. DiProspero, supra, 183 N.J. at 492. The limitations provision in N.J.S.A. 34:15-51 is jurisdictional, Schwarz, supra, 16 N.J. at 248, and "cannot be inflated by . . . judicial inclination," Bey, supra, 360 N.J. Super. at 327. We find no error in the dismissal under the plain language of N.J.S.A. 34:15-51.

Zito also argues that AIC's actions contributed to his failure to file his petition within time and that it should be "equitably estopped from assertion of the limitations of [N.J.S.A.] 34:15-51" as a result of its "deceptive conduct." Specifically, he urges that Treihart "engaged in conduct to divert him from his remedies under the Compensation Act" when she allegedly told him "to obtain treatment on his own" months after he received his last compensation payment. This "compounded the earlier misrepresentations contained in the February 22, 2005[,] correspondence," which "impaired [Zito] relative to almost every essential aspect of the claim."

AIC responds that it properly handled Zito's claim, and "any failure to file a claim within the statute of limitations lies with [him]." It again urges that cases cited by Zito are inapposite. Zito waited almost a full year after the statute of limitations had run before filing his claim, and the checks sent to him had correct dates despite their incorrect claim and insurance numbers.

Zito did not properly raise this argument before the compensation judge and may not raise it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). He only asserted that his "disabilities, even without consideration of the misleading information contained in the written communications of the carrier in 2005, interfered with his ability to understand his legal rights and his ability to institute legal action to have the tendered offer of the carrier reviewed." This assertion did not sufficiently raise an estoppel argument. In any event, Zito has not placed any facts in evidence to support this argument because he did not certify that he even relied on the statements in Treihart's letter and also did not certify that she made any oral statements to him at all. The information that we have about everything Treihart did or said is only inadmissible hearsay. As such, we find no merit to Zito's estoppel argument.

Affirmed.

1 This affidavit and a subsequent July 28, 2010, affidavit clearly violated Rule 1:6-6 because they contained hearsay and were not "made on personal knowledge" as that rule requires. The hearsay portions should not have been considered by the judge.

2 Argument, like hearsay, should not be contained in an affidavit or certification. Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2012). The statement incorporated in that argument also violated Rule 1:6-6.

3 We find no evidence of Zito's marital status in the record, but it is inconsequential.

4 Again, we find no evidence of this fact in the record, but it too is inconsequential.