Restoring Dismissed Claims: New Case Explores the Deadline for Restoration

The New Jersey Workers’ Compensation Act permits dismissed claims to be restored “for good cause shown” within one year of the dismissal. N.J.S.A. 34:15-54 provides, in pertinent part:

No petition shall be dismissed for want of prosecution or for failure to formally adjournt he cuase, 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 service thereof, the claim will be considered abandoned and the petition dismissed subject, however, to the right to the right to have the petition reinstated for good cause shown, upon application made tot he deputy commissioner before whom the matter was heard or to the Commissioner of Labor within one year.

“Good cause” means “a substantial reason that affords legal excuse for the default.” Nemeth v. Otis Elevator Co., Inc., 55 N.J. Super. 493, 497 (App. Div. 1959).

In a recent case a claim was dismissed for ‘lack of prosecution’ on June 30, 2006. The petitioner then decided to represent herself ‘pro se.’ The claiamnt signed and mailed a Motion to Restore her claim petition on June 29, 2007. The Motion to Restore was received and filed by the Division of Workers’ Comepnsation on July 3, 2007. The employer objected to the case being restored, as the claimant’s motion to resore the case was not received until after the one-year deadline set forth in the statute.

The Judge of Compensation granted the motion to restore, despite the fact that the motion was technically “late.” The Judge considered the fact that the claimant had signed and mailed the motion before the one-year mark, and attributed the delay in filing to internal office procedures at the Division of Workers’ Compensation. Further, the Judge found that “the petitioner attempted to comply, and the statute should be ‘liberally construed’ to permit the restoration of the motion.

The Appellate Divison that reviewed this case gave deference to the finding of the Workers’ Compensation Judge restoring the motion based on the premise that the claimant had ‘signed and mailed’ the Motion to Restore before the one-year time limit. Further, the Appellate Court noting “the legislative intent and public policy will be furthered by a liberal cionstruction of the Workers’ Compensation Act in order to reach a salutory and remedial result favorable to the injured worker, rather than one necessarily dictated by the ‘coldly literal import’ of the legislation.” (Citing Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535, 546, cert. denied, 87 N.J. 415 (1981).

Case: Zimbitsky v. County of Morris, A-2429-08T1 (App. Div., decided January 15, 2010).

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