NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1669-18T4
Submitted November 19, 2019 – Decided December 17, 2019
Before Judges Currier and Firko.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2000-15762.
Post, Polak, PA, attorneys for appellant (Mitchell H.
Portnoi, of counsel and on the briefs; Kyle Stephen
Reed, on the briefs).
Weber, Gallagher, Simpson, Stapleton, Fires & Newby,
LLP, attorneys for respondent (Richard Daniel Arnold,
on the brief).
In this workers' compensation matter, petitioner appeals from the
dismissal of his third application to review and modify the original award. The
workers' compensation judge denied the application, finding it untimely under
N.J.S.A. 34:15-27. We affirm.
In 2000, while employed by respondent UPS Freight, petitioner injured
his right knee. Several awards of compensation were issued thereafter
addressing that knee injury. Petitioner subsequently became employed by the
Westfield Board of Education (BOE) and he filed a petition for compensation
for bilateral knee injuries against his new employer in 2012. At the same time,
petitioner moved to re-open his prior petition against UPS.
In December 2012, the compensation court concluded that UPS was
responsible for all treatment regarding petitioner's right leg; Westfield BOE was
directed to pay for treatment attributed to the left leg. Petitioner underwent
bilateral knee replacements in February 2013. The court again ordered UPS to
pay for all treatment to the right leg; Westfield BOE remained responsible for
the left leg.
Both petitions were resolved on December 2, 2015. Petitioner was
awarded 55% permanent disability against Westfield BOE regarding his left
knee. He was awarded 85% permanent disability against UPS regarding the
right leg. UPS paid the award to petitioner on December 17, 2015.
In May 2017, petitioner requested UPS and Westfield BOE re-examine
him and authorize additional treatment for both knees. UPS did not respond.
Westfield BOE referred petitioner to an examining doctor who gave diagnoses
of both knees. The doctor also instructed petitioner to stay out of work for two
Petitioner requested the court re-open his petition against UPS in March
2018. UPS moved to dismiss the application, and after oral argument, the
compensation court granted the motion. The court found the application was
not filed within the two-year statute of limitations mandated by N.J.S.A. 34:15-
27, and the petition was dismissed with prejudice.
On appeal, petitioner argues the examination by Westfield BOE's doctor
on July 10, 2017 was medical treatment, therefore tolling the two-year statute
of limitations. He further contends that because UPS failed to schedule an
examination or advise petitioner it would not authorize any further treatment, he
was "lull[ed] . . . into a false sense of security . . . ."1 Therefore, according to
See Witty v. Fortunoff, 286 N.J. Super. 280 (App. Div. 1996) ("In cases of
this type, the determining factor is whether the total pattern of conduct would
petitioner, UPS is estopped from asserting the statute of limitations. We are
N.J.S.A. 34:15-27 provides, "[u]pon the application of any party, a formal
award, determination, judgment, or order approving settlement may be reviewed
within two years from the date when the injured person last received a payment
on the ground that the incapacity of the injured employee has subsequently
increased." The two-year time limit is a jurisdictional requirement. Other than
mental incapacity, there are no exceptions to toll the statutory period. Bey v.
Truss Sys., Inc., 360 N.J. Super. 324, 327-28 (App. Div. 2003) (citing Polcaro
v. City of East Orange, 121 N.J. Super. 325, 327 (App. Div. 1972)).
While we agree the furnishing of medical treatment is compensation, here
UPS did not provide any medical treatment after December 17, 2015. See Sa v.
H.L. Harrison & Son, Inc., 38 N.J. 203, 207 (1962) (citing Oldfield v. N.J.
Realty Co., 1 N.J. 63 (1948)). Only Westfield BOE referred petitioner to an
examining doctor who then issued diagnoses regarding both legs. Petitioner was
well aware of the several court orders delineating separate responsibilities for
each knee to his two employers. Westfield BOE's decision to refer petitioner
be likely to lull an injured employee into a false sense of security which may
cause him [or her] to fail to file a timely petition.") (citing O'Keefe v. Johansen
Co., 122 N.J. Super. 45, 47 (App. Div. 1973)).
for medical treatment is not binding upon UPS, and BOE's actions cannot serve
to toll the statute of limitations as to UPS. Petitioner has not shown any action
by UPS which would indicate UPS intended to authorize any further treatment
to the right leg.
Because petitioner filed his application to re-open his petition against UPS
more than two years after UPS made its last payment, the application was
untimely, and properly dismissed.