One of the most complex Appellate Division decisions in many years on reopeners and the statute of limitations in occupational disease cases is Tighe v. Tighe Landscape Design, Inc., No. A-0915-24 (App. Div. November 2, 2026). The case is complicated from a legal and procedural perspective, and it is necessary to review all the legal steps taken by the parties in this case to appreciate the ultimate decision by the Appellate Division.
The case stemmed from a work-related injury to petitioner Tighe on November 6, 2015, while petitioner was unloading boulders for use on a job site. He underwent extensive right shoulder surgery and filed a claim petition on December 21, 2016. Petitioner testified at a hearing on May 4, 2018, regarding restrictions of use in his right hand and shoulder. The Judge of Compensation approved an award of 31% permanent partial disability primarily for loss of function in the right shoulder.
On August 14, 2020, petitioner filed a modification petition, commonly termed a “reopener.” The petition noted that petitioner’s “pain has increased in frequency, duration and intensity.” Respondent filed a motion to compel responses to interrogatories on October 21, 2020, and subsequently a motion to dismiss for lack of prosecution. Petitioner sought treatment, and respondent arranged an examination with Dr. Lawrence Barr, who opined that treatment would not be beneficial as petitioner had been experiencing right shoulder pain since 2015.
Petitioner retained Dr. Michael Pensak, who observed that petitioner had “right shoulder pain and right upper extremity weakness and numbness and tingling in the extremity” as well as “paresthesia in the index finger and long finger.” Dr. Pensak recommended further physical therapy and treatment to the shoulder and the cervical spine region. He opined that petitioner suffered a derivative right carpal tunnel syndrome which he felt was exacerbated by nighttime discomfort and inability to sleep comfortably. He further recommended an EMG and a nerve conduction study to rule out compression neuropathy and possible cervical radiculopathy, cubital tunnel and/or carpal tunnel syndrome.
Petitioner next filed a first amended application for modification seeking treatment for right carpal tunnel syndrome. He then filed a motion for medical and temporary disability benefits. Dr. Barr reviewed records and issued a supplemental report, finding that petitioner’s condition was unchanged. He also commented that petitioner’s current numbness and tingling did not correlate with carpal tunnel syndrome and was unrelated to the work injury in 2015.
Petitioner testified on August 23, 2022. He testified that since his prior testimony in 2018, he experienced more pain and his condition had worsened. He also said that his pain and numbness in the fingers of his right hand, which had manifested after his initial surgery, was getting worse.
An Order for an EMG was entered on October 25, 2022. That EMG showed mild C-7 radiculopathy and mild to moderate carpal tunnel syndrome.
Petitioner next filed a second amended application for modification seeking treatment for the cervical spine as well as for carpal tunnel syndrome.
On December 6, 2022, petitioner filed a new claim petition alleging occupational injuries from repetitive use for the years 1981 through 2015.
In support of his new claim and motion, petitioner saw Dr. Matthew Tormenti, a spine surgeon. Dr. Tormenti recommended an MRI of the cervical spine and physical therapy for the neck.
On June 23, 2023, petitioner filed a new motion for medical and temporary disability benefits, seeking physical therapy and an MRI of the neck.
On July 14, 2023, respondent filed opposition to the motion and a cross-motion to dismiss for failure to sustain the burden of proof and on the basis of the statute of limitations. Respondent contended that petitioner failed to prove a “material worsening of the compensable conditions pled in his reopener” as well as a failure to prove causation to the occupational claim petition. No opposition was filed by petitioner to respondent’s motion.
On November 28, 2023, Dr. Tormenti testified. He said he diagnosed neck pain resulting in “an inability to look all the way up to the ceiling.” Dr. Tormenti said that the EMG and NCS testing showed normal sensation in the hands but “subtle” weakness in the right arm. He said he would need more information to “comment on whether there is any shoulder pathology contributing.” He could not comment on whether petitioner had age-related degenerative conditions. He maintained that petitioner’s symptoms were related to the 2015 accident. He testified that petitioner needed an MRI of the neck.
Respondent did not produce its own medical expert. The Judge requested trial summation briefs by January 9, 2024. Respondent submitted a brief but petitioner did not.
The Judge reviewed the trial testimony as well as all prior testimony and medical records. She made the following findings:
- Petitioner had been experiencing radicular symptoms since the accident and surgery in 2015 and that he had only attributed his symptoms to his accident. She found that petitioner had “repeatedly recounted symptoms the same way from 2016 onward, including during his medical examinations.” She noted that petitioner only described a material worsening twice, once “when he was led by his attorney” at the August 23, 2022 hearing and second in a June 23, 2023 certification in his motion papers for treatment.
- The Judge of Compensation found petitioner’s complaints to medical providers were more salient than statements made in litigation. She found that petitioner’s “radicular complaints have essentially remained the same since they first manifested.”
- The Judge of Compensation found that petitioner “never related his radicular symptoms to his occupational duties” and therefore failed to carry his burden of proof on causation for his occupational claim petition.
- The Judge of Compensation also found that the occupational claim petition was barred by the statute of limitations because the radicular symptoms first manifested in 2015.
- Regarding the amended claim petition adding additional diagnoses, the Judge of Compensation ruled that the amended CP must be dismissed because petitioner failed to prove any increase in disability.
Petitioner appealed and argued, among other issues, that the Judge improperly converted the motion for medical treatment into a trial on permanency. Petitioner contended that this resulted in a violation of his due process rights. The Appellate Division disagreed with this argument. “Tighe mischaracterizes the record. Here, the judge did not address the issue of permanency. Rather, she addressed the threshold jurisdictional questions necessary for the case to proceed. The record shows the judge examined the timeline of Tighe’s case and the description of his symptoms. The Judge concluded he met neither of the requirements to reopen his claim under N.J.S.A. 34:15-27, and that his claim would otherwise fall outside the statute of limitations. Because these discrete jurisdictional prerequisites were not met, the judge dismissed the claims rather than proceed to a trial on the merits.”
The Appellate Division ruled against petitioner on the argument that the sole issue before the Judge of Compensation was entitlement to additional medical treatment in connection with the various motions for treatment that had been filed. Respondent filed a cross-motion to dismiss Tighe’s reopener claim, arguing that he failed to sustain his burden of proof and his claim was outside the statute of limitations. Respondent also submitted a post-hearing brief, as reflected in the judge’s dismissal order. The Court added: “[W]e reject Tighe’s argument that she conducted a ‘rogue analysis’ untethered to the proceedings. Instead, the judge rendered a decision on respondent’s motion, which was filed several months prior to the final hearing.” The Court added that petitioner did not oppose respondent’s motion to dismiss and did not submit a post-hearing brief. The Court also commented that the Judge of Compensation did not need to address the motions seeking medical treatment (such as the MRI) before determining “whether the reopener claim was viable under the statute.”
The Appellate Division disagreed with that aspect of the trial judge’s decision which required that petitioner had to plead conditions in the original CP in order to be eligible to include those conditions in the reopener claim petition. The Court held that it was sufficient to argue that the new diagnoses stemmed from the conditions named in the original pleadings. However, the Court emphasized that the Judge of Compensation found that petitioner’s radicular complaints, which were raised in the amended reopener application, “have essentially remained the same since they first manifested” shortly after his surgery in 2015. The Court affirmed the decision of the Judge of Compensation based on her finding that the record did not show any worsening of petitioner’s condition. The Court also noted that “Tighe’s attorney stipulated that his radiculopathy was present in 2017 – prior to the initial settlement.” The Court further quoted testimony from Dr. Tormenti to the effect that “[i]t appears that these symptoms started after the accident and have been persistent throughout.” The court noted that Dr. Tormenti felt that petitioner’s shoulder injury had masked the spinal/nervous condition, “further suggesting that the symptoms had remained constant.”
In the final analysis, the Appellate Division affirmed the dismissal of the reopener claim and the occupational disease claim because there was substantial credible evidence in the record to support the conclusions of the Judge of Compensation. “Because a worsening in Tighe’s condition is ‘the sine qua non to the exercise of the Division’s continuing jurisdiction’ over previously settled cases, Yeomans, 27 N.J. at 508, the judge could not entertain a reopener claim that lacked that element.” The Appellate Division and Judge of Compensation focused on the jurisdictional requirement to maintain a reopener claim.
In New Jersey, perhaps one quarter of all cases involve reopener petitions. So, what does it mean when the court referred to the “jurisdictional requirement” in N.J.S.A. 34:15-27? This is what the statute provides: “A formal award, determination and rule for judgment or order approving settlement may be reviewed within two years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased.” The key words are that there must be proof of an increase in incapacity as a jurisdictional foundation for a petitioner to receive a modification upward of a prior award. The Judge received a motion to dismiss the case filed by defense counsel and ruled there was no jurisdiction to modify the award because there was no proof that the petitioner’s incapacity had increased. The Judge reviewed petitioner’s testimony, his expert witnesses’ testimony and medical records in evidence. Because she determined that petitioner could not show any increase in incapacity, the Judge dismissed the case without hearing testimony from permanency experts. The Appellate Division affirmed this decision.
The tactical decisions made by the defense are worthy of consideration. After petitioner presented his case, respondent decided not to produce a medical expert witness. That seldom happens in motion trials, but in this case one can presume that defense counsel must have concluded that the petitioner failed to sustain his burden of proof on increased incapacity (which is as noted the jurisdictional requirement in every reopener case). In any workers’ compensation case, an attorney must always consider carefully the decision whether to present or not present an expert. In this case, not presenting an expert meant that the decision of the Judge of Compensation had to rest entirely on record at trial, which included the testimony of petitioner and his expert witness along with medical records submitted into evidence. The strategy worked for the defense in this case.
The single most important tactical decision by respondent in this matter was filing a cross-motion to dismiss the petitioner’s case. That decision played a pivotal role in the outcome of this case, followed by the filing of a post-trial legal brief to support the cross-motion. Without respondent’s cross motion to dismiss, petitioner would have had a strong argument that the only issue before the trial court was his motion for treatment. The Appellate Division referenced the importance of the cross motion to dismiss several times as providing the basis for the Judge of Compensation to dismiss the reopener claim on jurisdictional grounds.
