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Two Year Statute Of Limitations Runs From Last Date Of Comp Payments And Cannot Be Relaxed By Court

By on February 14, 2012 in Key Defenses with 1 Comment

Many states have a provision that allows an employee to file a workers’ compensation claim within two years from the last payment of workers’ compensation benefits.  But is this statute absolute?

Kirsten Toth was injured on July 23, 2004 working for Princeton Health Care.  She struck her head on her car door while bending to retrieve her security badge.  She was hospitalized for eight days and Travelers Insurance Company paid for all medical treatment in the hospital as well as for six months of care with a neurosurgeon, neurologist and neuropsychiatrist.  The last date of treatment was January 28, 2005.

Petitioner returned to work at Princeton Health Care full-time on February 1, 2005.  She left the company to move to the State of Georgia in March 2007.  She filed a workers’ compensation claim petition on November 6, 2008, more than three years after the last payment by Travelers.

Respondent moved to dismiss the claim petition, but petitioner argued that the statute should be tolled because she did in fact have treatment within two years of the filing date.  The problem was that the treatment was not authorized, nor known by Travelers.  The nature of the treatment was psychological.  Petitioner actually began treating on January 27, 2003, well before her work injury, for anxiety and depression.  Following the accident, she continued with her psychological treatment, and her psychologist focused on the consequences of the work accident.

Petitioner argued that it should not matter that the carrier and respondent did not approve the treatment; more importantly, she contended that the treatment she received was in fact for a work-related injury.  She relied on the case of Sheffield v. Schering Plough Corp., 146 N.J. 422 (1996) which held that where an employer directed a claimant to treat for a work-related injury through health insurance, those costs should be considered work-related costs for purposes of tolling the statute of limitations.

Respondent countered this argument by pointing out that in this case it did not try to direct petitioner to use health insurance.  It did not even know petitioner was treating for a work-related psychological problem in the first place.  The judge of compensation and the Appellate Division agreed with the employer.  “It is clear in this case, unlike in Sheffield, that Princeton Health Care did not ‘divert the employee from the remedies available under the Act.’” The court noted that petitioner had direct dealings with the Travelers’ claims representative and a case nurse but never asked them for permission to treat, nor inform them that she was treating for a work-related condition.

Petitioner conceded that she did not ask permission to treat but she did inform two of her supervisors of her counseling in the winter of 2005.  The court said, “However, petitioner did not testify that she told the supervisors that she needed this counseling because of the injuries she suffered in the July 23, 2004 accident. Moreover, even if she had expressed that view to her supervisors, it would not have been within the scope of their responsibilities to advise petitioner that she could receive payment for the counseling from Princeton Health Care’s workers’ compensation carrier rather than her health care insurer.” 

This decision is clearly a correct application of the statute, N.J.S.A. 34:15-51, and any ruling otherwise would basically have nullified the two-year statute of limitations.  This case can be found at Toth v. Princeton Health Care, A-4847-10T2 (App. Div. February 10, 2012).


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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  1. John,

    This is a great decision. Where was this case heard? Who was the judge that granted the motion to dismiss?


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