KIRSTEN LENORE TOTH - v. PRINCETON HEALTH CARE -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4847-10T2

KIRSTEN LENORE TOTH,

Petitioner-Appellant,

v.

PRINCETON HEALTH CARE,

Respondent-Respondent.

____________________________________

February 10, 2012

Argued January 23, 2012 - Decided

Before Judges Grall and Skillman.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C. P. No. 2008-31061.

John D. Kovac argued the cause for appellant (Law Office of John D. Kovac, attorneys; Mr. Kovac, of counsel and on the brief; Jeffrey Zajac, on the briefs).

Carol A. Dietrich argued the cause for respondent (Law Offices of William E. Staehle, attorneys; Ms. Dietrich, on the brief).

PER CURIAM

This is an appeal from the dismissal of a petition for workers' compensation benefits on the ground the petition was filed beyond the two-year period allowed by N.J.S.A. 34:15-51.

On July 23, 2004, petitioner, who was employed as a social worker by respondent Princeton Health Care, suffered a serious head injury as a result of hitting her head on her car door while bending down to retrieve her security badge. There is no dispute concerning the compensability under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, of this accident, which occurred on Princeton Health Care's premises.

Petitioner was hospitalized for eight days during which she received extensive treatment for her head injuries. Respondent's workers' compensation insurance carrier, Travelers Insurance Company, paid all the costs for this medical treatment.

Following her discharge from the hospital, petitioner received extensive additional medical treatment. For a period of approximately six months, she was treated by Dr. Edward Von Der Schmidt, a neurosurgeon, Dr. John Vester, a neurologist, and Dr. Nancy Fiedler, a neuropsychologist. The last of the these treatments occurred on January 28, 2005, when petitioner went to her final appointment with Dr. Vester. Travelers paid all the costs of petitioner's authorized medical treatments by these doctors.

Petitioner stayed out of work from the date of her accident until December 6, 2004, when she resumed work on a part-time basis. She went back to work at Princeton Health Care full-time on or about February 1, 2005, where she continued working until March 2007, when she moved from New Jersey to Georgia to accompany her husband, whose job had changed location. Travelers paid petitioner temporary disability benefits at the rate of $551.60 per week during the period of time she was out of work as a result of her accident. These payments totalled $9062.

Approximately a year-and-a-half before her accident, on January 27, 2003, petitioner began counseling with Dr. Susan Huslage, a psychologist. According to petitioner, she began to see Dr. Huslage due to her "anxiety, depressive symptoms, and eating disorder related behaviors." Petitioner testified that this psychological counseling addressed "self-esteem issues as related to work and dealing with the stressors of being in a work environment" and her efforts to build stronger relationships with her family, which was also a cause of stress in her life.

After her accident, petitioner continued to see Dr. Huslage for her psychological problems. In the months immediately following the accident, the physical and psychological consequences of the accident were a focus of Dr. Huslage's counseling. Petitioner continued to see Dr. Huslage until she moved to Georgia with her husband in March 2007.

The costs of petitioner's counseling with Dr. Huslage were paid, both before and after her accident, by her insurance carrier under a group health policy provided through her employer.1 Although petitioner disclosed to two of her supervisors at Princeton Health Care that she was receiving psychological counseling from Dr. Huslage, she deliberately withheld any information regarding this counseling from the Travelers representatives with whom she dealt in connection with the workers' compensation benefits for her medical treatment and temporary disability during the six months following the accident.

On November 6, 2008, more than four years after her accident and more than three-and-a-half years after the last payment by Travelers for petitioner's medical treatment, petitioner filed a claim against Princeton Health Care for partial, permanent workers' compensation benefits. Princeton Health Care moved to dismiss the petition on the ground that it was filed beyond the two-year limitation period allowed by N.J.S.A. 34:15-51.

The Judge of Compensation to whom the case was assigned conducted a two-day hearing with respect to this motion, following which he issued an oral opinion that concluded the petition had been filed after expiration of the two-year period allowed under N.J.S.A. 34:15-51. Following entry of an order memorializing the judge's decision, petitioner filed this appeal.

N.J.S.A. 34:15-51 provides in pertinent part:

Every claimant for compensation . . . shall . . . submit to the Division of Workers' Compensation a petition . . . 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 purposes of this section be deemed payment or agreement by the employer.

[Emphasis added.]

It is undisputed that the last payment of compensation benefits by Travelers on Princeton Health Care's behalf occurred on January 8, 2005, when petitioner last visited Dr. Vester. However, petitioner argues that the last payment to Dr. Huslage by petitioner's health insurer, which occurred in March 2007, within two years of her claim petition, may be considered the "last payment of compensation" to petitioner for her July 23, 2004 compensable accident for the purpose of satisfying the two-year limitation period established by N.J.S.A. 34:15-51. Petitioner claims that this argument is supported by Sheffield v. Schering Plough Corp., 146 N.J. 422 (1996), which interpreted a similar two-year limitation period established by N.J.S.A. 34:15-34 for occupational disability claims.

In Sheffield, the petitioner suffered a back injury as a result of the repetitive stress of her work, which required extensive medical treatment and caused her to be out of work for substantial periods of time. Id. at 446-47. Petitioner's employer, Schering, repeatedly advised her to obtain medical benefits from her health care insurer and temporary disability benefits from Schering's private plan disability insurers. Id. at 447-49. In fact, when petitioner's health care insurer delayed or denied payment of petitioner's claims on the ground that her injuries were work-related and her claims should therefore be submitted to Schering's workers' compensation carrier, Schering notified the petitioner and the health care provider that it did not consider her injuries to be work-related and that the health care insurer should therefore pay for her medical treatment. Id. at 448-49. In addition, Schering failed to discuss the availability of workers' compensation benefits with the petitioner. Id. at 449. When the petitioner filed a claim for workers' compensation benefits a number of years later, Schering successfully moved for dismissal on the ground that the petition had not been filed within the two-year period allowed under N.J.S.A. 34:15-34.

In reversing, the Supreme Court concluded that an employer's provision of medical treatment for a work-related injury or condition, or arrangement of payment for such treatment, may be considered a "payment of compensation" that delays the running of the statute of limitations:

"It is manifest that a cogent object of the provision [that permits the filing of a claim within two years after the last payment of compensation] is to prevent employers and their insurers from lulling the injured employees into a false assumption of security and consequential inaction and tardiness by means of voluntary assistance."

. . . .

. . . "[W]here medical treatment which could have been required under the [workers' compensation] statute is actually furnished by the employer, such treatment is considered 'payment of compensation' and a claim petition filed within two years of such 'payment' is within time."

. . . .

. . . Where the employer has expressly authorized or arranged for the provision of medical treatment or the payment of compensation therefor, the effect is the same as if the employer itself had furnished the treatment of compensation.

. . . .

Conversely, where the employee obtains medical treatment in the absence of any authorization by the employer, the treatment generally will not constitute payment of compensation extending the limitations period.

[146 N.J. at 453-55, 457 (quotations omitted).]

Applying these principles to Schering's direction to the petitioner to seek payment for her medical treatment and disability benefits from her health care insurer and Schering's private plan disability insurers, the Court concluded that "when an employer undertakes to advise an injured employee to apply for certain disability or medical benefits that are authorized by the employer, the employer necessarily assumes a further obligation not to divert the employee from the remedies available under the Act." Id. at 460. The Court further concluded that "because of Schering's direct involvement in inducing its health-insurance carrier to pay for medical expenses incurred by Sheffield for her work-related injuries, the fact that those payments were made by a health-insurance carrier rather than a workers' compensation carrier obviously is irrelevant." Ibid.; see also Earl v. Johnson & Johnson, 158 N.J. 155, 169 (1999) ("A company that diverts an employee from the remedies available under the [Workers' Compensation] Act may be precluded from asserting the statutory bar by reason of its conduct.").

It is clear in this case, unlike in Sheffield, that Princeton Health Care did not "divert the employee from the remedies available under the Act." Sheffield, supra, 146 N.J. at 460. In fact, petitioner availed herself of those benefits and obtained payment by Princeton Health Care's workers' compensation insurer, Travelers, for the medical treatment she received during her eight days of hospitalization and the outpatient medical treatment she received from various doctors during the six-month period following her hospitalization. Petitioner also received payment from Travelers of more than $9000 in temporary disability benefits for the period she was out of work.

Moreover, petitioner had extensive direct dealings with the Travelers' claims representative, Donna Parisi, and a nurse, Pat Harris, who handled the claim on behalf of Travelers. Therefore, petitioner was well aware that her July, 23, 2004 accident was compensable under the Workers' Compensation Act. Petitioner was also well aware that the way to resolve any issue she might have concerning her workers' compensation benefits was to communicate with Parisi and Harris. Thus, if petitioner believed that her treatment with Dr. Huslage was covered or might be covered by workers' compensation, she could have directed an appropriate inquiry to those Travelers' representatives. Instead, she deliberately failed to disclose to them that she was being treated by Dr. Huslage and continued to receive payments for that treatment from her health insurers, as she had done before the accident. Consequently, unlike in Sheffield, Princeton Health Care did not "induce" petitioner to seek payment by her health care insurers for her counseling by Dr. Huslage; rather, it was petitioner herself who made the decision to continue receiving payments from that source. Therefore, those payments did not extend the two-year limitations period established by N.J.S.A. 34:15-51. See Sheffield, supra, 146 N.J. at 457.

Petitioner relies on the fact that even though she never informed the Travelers' representatives of her counseling with Dr. Huslage, she advised two of her supervisors at Princeton Health Care of that counseling sometime in the winter of 2005. However, petitioner did not testify she told the supervisors that she needed this counseling because of the injuries she suffered in the July 23, 2004 accident. Moreover, even if she had expressed that view to her supervisors, it would not have been within the scope of their responsibilities to advise petitioner that she could receive payment for the counseling from Princeton Health Care's workers' compensation carrier rather than her health care insurer. Rather, the Travelers claims adjuster, Parisi, was the one responsible for determining what medical treatment was authorized for petitioner's work-related head injury.

We also note that the record contains no evidence that petitioner's delay in filing her claim for workers' compensation benefits was in any way related to her lack of knowledge that she might be able to obtain payment by Travelers rather than her health care insurer for her counseling by Dr. Huslage. Petitioner testified that she became aware through her own research on the Internet, sometime after moving to Georgia, that she might have a basis for a claim for additional workers' compensation benefits. Petitioner's failure to conduct this research or consult an attorney at an earlier point in time does not provide an excuse for the failure to file her petition within the two-year limitations period established by N.J.S.A. 34:15-51.

Petitioner argues, as an alternative ground for reversal of the order dismissing her claim petition, that Princeton Health Care should be equitably estopped from relying upon a statute of limitations defense because it failed to provide her with additional medical treatment recommended by her doctors. This argument was not presented to the Judge of Compensation. Consequently, it is not properly before us on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, the argument is without merit. R. 2:11-3(e)(1)(E). Petitioner has not shown that there was any causal connection between the alleged failure of Princeton Health Care, or more specifically the Travelers representatives who handled her compensation claim, to provide her with additional medical treatment2 and petitioner's failure to file her claim petition until more than three-and-a-half years after she received payment for her last authorized medical treatment. See De Asio v. City of Bayonne, 62 N.J. Super. 232, 237 (App. Div. 1960) ("The Act does not provide as an additional sanction that, if the employer fails to furnish medical treatment after having notice of the injury, it will be estopped from asserting the bar [of the statute] of limitations.").

1 According to petitioner, this coverage was provided by United Health Care when she first began counseling with Dr. Huslage and subsequently by Horizon Blue Cross and Blue Shield.

2 We note that this alleged failure is vigorously denied by respondent.