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Court Allows Claimant to Reopen Previously Dismissed Claim Based on Dishonesty of Claimant’s Attorney

By on April 30, 2015 in Uncategorized with 0 Comments

Cases dismissed under N.J.S.A. 34:15-54 for lack of prosecution are permanently closed if not reinstated within one year.  The matter of Kost v. GPU Energy, A-0858-13T3 (App. Div. 2015) offers one exception to the rule.

Richard Kost filed seven claims against GPU Energy/JCP&L in 2003.  He also filed a parallel civil action which was pending from 2003 to 2008.  Claimant’s attorney, Eric Lentz, left his law firm, Garces and Grabler, in March 2005.  Lentz kept the case and from time to time met with Mr. Kost.

Problems began between the years 2005 and 2008.  Lentz failed to comply with several requests made by the Judge of Compensation, leading GPU to file a motion to dismiss for lack of prosecution.  That motion was granted in December 2008.  The rule provides that the claimant has one year to reopen the matter or the dismissal becomes final.

On December 8, 2008, GPU’s attorney sent the order of dismissal to Lentz, who had not appeared at the hearing when the case was dismissed.  Mr. Kost said he was never made aware of the dismissal.  He said he called his lawyer on numerous occasions but could not reach him.  Finally in January 2010, he reached his lawyer, who misled him into believing that the workers’ compensation cases were still active.  Lentz told Kost that the cases were progressing, and from time to time he asked Kost to sign medical authorization forms. The Appellate Division noted, “However, it is clear that Lentz hid from petitioner the true status of his cases.”

In January 2010, Lentz scheduled an appointment for Kost to attend a permanency exam.  When petitioner got to the doctor’s office, there was no record of any appointment, nor any paperwork from Lentz.  Kost confronted Lentz, who assured him that the cases were progressing.  He never told Kost that his cases had been dismissed in December 2008.

Kost retained new counsel, who figured out that the cases had been dismissed and attempted to restore the cases to the active list.  GPU argued that the one-year time period for reinstatement had passed.  The Judge of Compensation on September 16, 2013, refused to reinstate the case, and Kost appealed.  The Appellate Division was faced with the fact that N.J.S.A. does not provide for any exceptions:

Although N.J.S.A. 34:15-54 does not expressly create an exception to the one-year requirement for filing a motion for reinstatement, our courts have recognized that compensation judges possess the inherent power to excuse the one-year time bar upon the grounds set forth in Rule 4:50-1.

The Court found that this was an exceptional circumstance.  “Petitioner’s dilemma was not caused by his own dereliction or ambivalence. Instead, fault for the dismissal rests squarely on his prior attorney.  Here, petitioner made significant effort to keep in contact with Lentz.  He was affirmatively mislead, and assured his cases were still active.  It was not until new counsel took over in 2010 that petitioner was informed his cases were dismissed.”

The Court also noted that GPU was not really prejudiced in this case because the company had obtained substantial discovery during the five-year period of the civil litigation.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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