Statute of Limitations on 're-opened' claims

A settlement or judgment is not the end of a case in New Jersey (unless you close a case by way of Section 20 – a ‘lump sum dismissal.’ A claimant retains the right to ‘re-open’ their case if their condition worsens and the doctrine of res judicata does not apply.

The law (N.J.S.A. 34:15-27) states that the worker can ‘re-open’ their claim for “two years from the date compensation was last paid” which includes payments for medical benefits.

In the Pollock case, the claimant received ‘accelerated’ compensation payments, representing accrued benefits and interest (for late payment) on March 28, 2002. The carrier paid out all the benefits in one lump sum as ‘accrued’ based on a practice known as ‘filling in the gaps.’ In the ‘filling in the gaps’ practice, the payments due under an award (in this case, 203 weeks) are retroactively applied to periods of ‘accrued partial permanency benefits.’ In practice, this means that the carrier ‘looks back’ to periods where the claimant was not receiving temporary disability wage compensation and “fills in” those periods with permanency payments. This serves to decrease the number of payments due the claimant.

The claimant then filed a re-opener claim on September 7, 2004.

The carrier argued that the ‘accelerated’ “filling in the gaps” payments had reduced or shortened the statutory time period for re-opener. The carrier argued that the claimant had two years from the date the last payment was made (March 28, 2002) to re-open his case.

The claimant argued that the ‘filling in the gaps’ practice could not reduce/foreshorten his time for re-opener and that the time period for re-opener runs consecutively from the date of the award.

The Trial Judge and the Appellate Panel found that the period for re-opener should run consecutively from the date of award or settlement. This effectively ends the practice of ‘filing in the gaps.’

Case: Pollock v. Tri-State Motor Transit, Inc., 2008-WL-3539972 (App. Div. decided Aug. 15, 2008)(Judges Winkelstein & LeWinn, unpublished as of blog date). Link to: PDF version.

Statutes discussed: N.J.S.A. 34:15-27

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com