Dyslexia and Learning Disability Do Not Provide Exemption From Two-Year Statute of Limitations

The statute of limitations is jurisdictional and nothing, other than perhaps insanity, relieves a claimant from the rule

All states have statutes of limitations for filing compensation claims. But are these statutes flexible under certain circumstance? The answer in New Jersey is emphatically no.

In Zito v. AIC, A-1070-10T2 (App. Div. September 26, 2011), petitioner began working for AIC in 2002. He injured his low back on June 18, 2004. Horizon Casualty Services provided workers’ compensation benefits and the authorized doctor, Samuel Synder, found petitioner to be at maximal medical improvement on September 14, 2004.

Thereafter, respondent sent petitioner for an IME with Dr. Cranston, who estimated 7.5% for a disc herniation at L4-5. Respondent made a voluntary offer for 45 weeks of benefits, and the offer was fully paid by the end of April 2005. A letter was sent to Zito explaining the terms of the voluntary offer. Zito later said that he did not understand the letter.

When AIC closed its operations, Zito began working for Hertz Rental as a mechanic. Zito got an MRI on his own on September 21, 2005 because the carrier declined to pay for another one. That MRI showed no material change in his condition.

On December 18, 2006, Zito reinjured his back working for Hertz. An IME doctor attributed his condition to the prior 2004 injury with subsequent exacerbations, including the 2006 incident. Zito then saw a lawyer and brought a claim petition against Hertz on August 20, 2007. However, no claim petition was filed against AIC until March 5, 2008, almost three years after the last payment of benefits.

AIC moved to dismiss under the statute of limitations. Zito argued that he suffered from dyslexia and did not understand the letter that Horizon sent to him making the voluntary offer of 45 weeks of benefits. He said that in school he had been classified as having a neurological and perceptional impairment and had been placed in a special education program. Testing results showed a low-average verbal IQ but an average full scale IQ.

The Judge of Compensation found that there was no statutory basis to expand the two year period of time for filing a claim petition in New Jersey under N.J.S.A. 34:15-51. Petitioner relied on a similar two-year provision on reopener claims under N.J.S.A. 34:15-27 which does in fact contain an exception for insanity. The Judge noted that there was no proof that petitioner is insane. In fact, the proofs showed he entered into contractual relationships, had a bank account and retained counsel to represent him. Respondent also argued to the court that petitioner was perhaps not unlike many claimants who have difficulties with the English language but who are still subject to the statute of limitations period.

The Appellate Division affirmed the ruling of the Judge of Compensation, noting that the insanity provision only appears in the reopener statute, not in the statute for filing initial claims. Further, the court agreed that there was no evidence that petitioner had become insane during the two-year filing period.

This case was handled by Michelle Duffield, Esq. of Capehart Scatchard, and questions on the holding may be referred to her at mduffield@capehart.com.

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