APPELLATE DIVISION GIVES PETITIONERS OF DISMISSED NJ WORKERS’ COMPENSATION
CASES AN EASIER SECOND BITE AT THE APPLE
In New Jersey, there is nothing that self-insured employers and carriers dislike more than the disappearing petitioner. That is, a petitioner who misses multiple IME appointments, is unresponsive to demands for medical information and interrogatories, or simply becomes missing in action and leaves his/her Workers’ Compensation case lingering in the Courts. Since New Jersey Workers’ Compensation Law does not provide any specific deadline for the completion of all discovery, there is little carriers can do compel petitioners until there is an extreme delay in the prosecution of the case.
An oft used tactic by defense counselors is the Motion to Dismiss for petitioner’s failure to prosecute his/her case. While an Order of Dismissal is difficult to obtain for petitioner’s failure to prosecute, the mere filing of the Motion can potentially awaken the sleeping petitioner into taking a more active role in his/her case so it moves closer to resolution. In practice, the Order of Dismissal for failure to prosecute is typically granted in cases where there is an extreme delay on the part of petitioner, such as instances when petitioner has missed multiple IME’s or otherwise delayed discovery for the period of a year or more, without cause.
If defense counsel is successful in obtaining an Order of Dismissal for petitioner’s failure to prosecute, the initial Order is granted “without prejudice,” which simply means that petitioner has the opportunity to reopen his/her case. However, in the event petitioner fails to reopen his/her case on or before one year following the date of the Dismissal, the Order becomes final “with prejudice.”
Not to be the bearer of bad news, but the case of Raul Planes v. Village Townhouse, 2014 NJ Super. Unpub. LEXIS 2784 (NJ Super. Ct. App. Div. Nov. 25, 2014) was not very kind to carriers and self-insured employers. In Planes, a Settlement Order was entered into by the parties in December of 2000, however, petitioner filed for a modification of the award in August of 2002. For some reason, petitioner delayed his case for seven years until respondent filed a Motion to Dismiss for lack of prosecution and an Order was granted without prejudice in March of 2009. Petitioner restored his case in October of 2009. However, petitioner again caused unnecessary delays in his case and a second Order of Dismissal was entered in December of 2010. In the second Dismissal Order, the Judge indicated that “the case not to be restored unless P.A. is ready to settle or try.”
In May of 2012, petitioner attempted to restore his case for a second time. However, the Judge denied petitioner’s application as untimely and indicated that he had no authority under Section 54 of the NJ Workers’ Compensation Law to extend the one-year statute of limitations to vacate petitioner’s Order of Dismissal. Petitioner appealed to the Appellate Division.
In its opinion, while the Appellate Division noted that diligent prosecution on the part of petitioner is imperative in Workers’ Compensation cases, they took issue with the fact that the Law Judge denied petitioner a hearing adjournment on the date his Motion to Restore would have been heard and the fact that the Second Dismissal Order included language that the case cannot be restored unless petitioner’s attorney is ready to settle or try the case. The Appellate Division appear to be hinting that such actions from the Judge could potentially be an abuse of discretion.
In that regard, the Appellate Division cleverly went outside of the New Jersey Workers’ Compensation law entirely and pointed to NJ Court Rule 4:50-1(f), which provides an applicant equitable relief from a dismissal order “for any other reason justifying relief from the operation of the judgment or order.” To add insult to injury, the Appellate Division further burdened respondents with the requirement that they must show petitioner’s untimely Motion to Renew would prejudice the respondent even though demonstrable prejudice is not a requirement found in Section 54 of the NJ Workers’ Compensation Law.
As such, Plane has the potential to be detrimental to carriers and self-insured employers that are reasonably using every tactic to compel petitioners to pursue their Workers’ Compensation cases. Significantly, Plane brings in the catch-all provision of NJ Court Rule 4:50-1(f) and weakens Section 54 of the Workers’ Compensation law, which may be a respondent’s only recourse when faced with a sleeping petitioner. Even more significant is the Appellate Division’s added requirement that a respondent show prejudice when opposing a late filing of petitioner’s Motion to Renew. This added requirement can be difficult to prove as carriers are often seen by Courts as having substantial resources that are rarely affected or prejudiced by the renewal of a sole petitioner’s case.
In conclusion, while filing a Motion to Dismiss for petitioner’s lack of prosecution is still a recommended tactic to awaken the sleeping petitioner, Plane has essentially stripped Section 54 of its ability to be a consequence to petitioners who cause extreme delays in their cases. One can only hope that future Appellate Division cases overturn or at least distance themselves from Plane so Court resources are not wasted on untimely Motions to Renew.