RAUL PLANES v. VILLAGE TOWNHOUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RAUL PLANES,

Petitioner-Appellant,

v.

VILLAGE TOWNHOUSE,

Respondent-Respondent.

November 25, 2014

Submitted November 13, 2014 Decided

Before Judges Maven and Carroll.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1991-3447.

Shurkin & Fershing, attorneys for appellant (Albert E. Fershing, on the brief).

William E. Staehle, attorney for respondent (Frank J. Muoio, of counsel and on the brief).

PER CURIAM

Petitioner Raul Planes appeals from the denial of his motion to vacate the dismissal of his application to modify his workers' compensation award for lack of prosecution. Because the judge of compensation relied solely on N.J.S.A. 34:15-54, and failed to recognize his inherent power to reopen judgments, we remand for further proceedings consistent with this opinion.

The facts and procedural history are undisputed and were stipulated to by the parties. An order approving the settlement of plaintiff's initial claim for partial disability benefits due to a foot injury was entered on December 18, 2000. On August 5, 2002, petitioner filed an application for review and modification of the prior award, alleging that his condition had worsened and that he was in need of further treatment for his foot and ankle. Respondent Village Townhouse filed an answer on October 21, 2002.

The matter was thereafter delayed for various reasons, including petitioner's continued treatment, pre-hearing discovery, and related expert medical examinations. It was dismissed for lack of prosecution on March 26, 2009. That dismissal was vacated on October 22, 2009, and the case was restored to the pre-trial list. In late October 2009, petitioner underwent hip surgery, which caused the January 14, 2010 trial date to be adjourned and the case placed back on the pre-trial list.

The case then continued to be adjourned by petitioner for various reasons, including that he required surgery on his foot and ankle, which had to be delayed due to his diabetes and heart problems. In October 2010, respondent again moved to dismiss the case for lack of prosecution. Petitioner's counsel requested an adjournment of the December 16, 2010 hearing due to a scheduling conflict, as he was serving as a court-appointed arbitrator in Essex County on that date. The judge of compensation denied the adjournment and entered an order dismissing the case for lack of prosecution pursuant to N.J.S.A. 34:15-54, subject to reinstatement for good cause shown within one year of dismissal. Handwritten on the order was the notation "case not to be restored unless P.A. is ready to settle or try."

Petitioner's surgery continued to be postponed numerous times due to his diabetes until it finally took place on September 15, 2011. Petitioner's attorney did not receive the operative report from the treating physician until May 2, 2012. The following day, petitioner's attorney forwarded the report to respondent's attorney, who in turn advised that he would oppose any motion to restore the case.

On May 17, 2012, petitioner moved to vacate the December 16, 2010 dismissal order and restore the matter to the active trial calendar. Following oral argument and an opportunity to brief the issue, the judge denied the motion on June 20, 2013. Notably, the judge reasoned that it was "very clear that we are a statutory court," and that he lacked "any authority under [N.J.S.A. 34:15-54] to extend the one[-]year statute."

Petitioner argues on appeal that the workers' compensation court has the inherent authority to reopen a case where appropriate notwithstanding the statutory one-year limitation. He further argues that the judge abused his discretion in adding a requirement that he be ready to settle or try the case as a condition to restoration, and then denying the motion as untimely.

Our standard of review is well-settled. We are bound by the compensation judge's fact-findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J.156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J.589, 599 (1965). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J.244, 262 (2003) (citations and internal quotation marks omitted). Petitioner bears the burden to establish the compensability of the claim being made. Id.at 279; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

However, it is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). The same standard applies with respect to the legal rulings of a judge of compensation. Sexton v. Cnty. of Cumberland, 404 N.J. Super. 542, 548 (App. Div. 2009).

The New Jersey Workers' Compensation Act "provides a remedy to an employee who suffers injury 'arising out of and in the course of employment' either by accident, N.J.S.A.34:15-7, or by contracting a compensable occupational disease, N.J.S.A.34:15-34." Brunell v. Wildwood Crest Police Dep't, 176 N.J.225, 236 (2003). Although the Act is "remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished[,]" Kahle v. Plochman, 85 N.J. 539, 547 (1981), "the preference for a liberal construction of the Act must be constrained by the plain meaning of the statute and the underlying purpose of the legislature." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).

N.J.S.A. 34:15-51 requires claimants to file a petition for workers' compensation resulting from accidental injury on the job within two years of the accident. Thereafter, the petition is subject to dismissal under N.J.S.A. 34:15-54, which provides

No petition shall be dismissed for want of prosecution or for failure to formally adjourn the cause, until after notice shall be served by the respondent on the petitioner or his attorney that unless the cause is moved for hearing within one month from the date of the service thereof, the claim will be considered abandoned and the petition dismissed subject, however, to the right to have the petition reinstated for good cause shown, upon application made to the deputy commissioner before whom the matter was heard or to the Commissioner of Labor within one year thereafter. No claim heretofore made shall be considered abandoned because the petition was dismissed under this section, if such petition has been reinstated for good cause shown, and such petition shall be deemed to have been dismissed without prejudice to further proceedings upon said petition, and further proceedings thereon shall be as effective as though said petition had not been dismissed.

To be sure, these statutes "show a legislative policy that claim petitions be filed within two years and processed expeditiously. Delay within the two years is viewed charitably; beyond the two years critically." Nemeth v. Otis Elevator Co., Inc., 55 N.J. Super. 493, 498-99 (App. Div. 1959). N.J.S.A. 34:15-54, at issue in this appeal,

is intended to bring a compensation case to an end regardless of the merits in the event the claimant does not diligently prosecute his petition. "Good cause," therefore, is concerned not with the merits alone but as well with the excuse for the delay.

[Id.at 499.]

However, our analysis does not begin and end with these statutory limitations. Rather, it is well-settled that

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. The presence of a legally adequate motivating element must be manifest. We are satisfied, as we were almost three decades ago in Stone, supra, that the practice in the Division in this respect ought to be tailored after that to which the courts adhere in response to R. 4:50. 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.

Our conclusion in this respect also signifies our determination with regard to time limitations. Motions to set aside judgments on R. 4:50 grounds must in any event be brought within a reasonable time and in most cases not later than a year after entry of judgment. R. 4:50-2 and R. 4:50-1(a), (b) and (c). But see R. 4:50-1(f); Bauer v. Griffin, 104 N.J. Super. 530, 540-541 (Law Div. 1969), aff'd, 108 N.J. Super. 414 (App. Div. 1970), certif. denied, 56 N.J. 245 (1970). It is conceivable, as was there said,

. . . that mistake, other than trial error, might be sufficiently egregious in any given case so as to qualify as an "other reason"; should, under those circumstances, qualify for the policy considerations which permit subsections (d), (e), and (f) [of R. 4:50] to be applied without time considerations beyond reasonableness; and should, therefore, not be limited by the one-year provision.

[Hyman v. Essex Cnty. Carpet Cleaning Co., 157 N.J. Super. 510, 516-517 (App. Div. 1978).]

Pertinent then is a consideration of Rule 4:50-1(f), which provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order." When considering this basis for relief,

[n]o categorization can be made of the situations which would warrant redress under subsection (f). . . . the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.

[Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966); see also Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994).]

In the present case, we initially note that petitioner's counsel was unable to appear to oppose the motion to dismiss because the hearing date conflicted with his obligation to serve as a court-appointed arbitrator in another court. We are unable to determine on this record why, under these circumstances, counsel's seemingly valid adjournment request was denied. Counsel was then served with an order that referenced not only N.J.S.A. 34:15-54, but also a requirement that the case could not be restored unless it was ready to be tried or settled. Although petitioner's surgery finally occurred in September 2011, within the one-year statutory period, the case was not ready until the doctor's report was received on May 2, 2012. Petitioner then promptly moved to restore the case two weeks later. Arguably these circumstances may suffice to warrant equitable relief under Rule 4:50-1(f), especially should respondent be unable to demonstrate prejudice due to the delay beyond the one-year statutory period.

In deciding the motion, the judge of compensation was clearly of the mistaken belief that he was unable to grant relief "[a]bsent specific authority in the statute." To the contrary, the matter may be reopened if it qualifies under Rule 4:50-1(f), and even then, if the motion is found to have been brought within a reasonable time. See Hyman, supra, 157 N.J. Super. at 517. We conclude that this determination "is best made in the first instance by the judge of compensation, on a record fully developed for that purpose and accompanied by adequate findings." Ibid. Accordingly we remand for a further hearing consistent with this opinion.

Remanded. We do not retain jurisdiction.