Vincent E. Halleran, Jr., Esq.
P.O. Box 1059
Freehold, N.J. 07728
 
Glenn A. Savarese, Esq.
Biancamano & DiStefano
10 Parsonage Road
Edison, N.J. 08837

 RE:  Domenici v. Lackawack, Inc. – C.P. No. 2000-13289

 Gentlemen:

Counsel for the respective parties in this matter have recently presented oral argument regarding respondent’s Motion to Dismiss.  Respondent argues that the subject claim petition was filed after the limitation period prescribed in N.J.S.A. 34:15-51 had expired.  Petitioner argues that the instant motion should be denied since the petitioner received medical treatment from/by respondent’s authorized medical provider within two (2) years of the date that this claim petition was filed.  Inasmuch as the pertinent facts are critical to a determination of this motion I will present them in detail.

Respondent admits both that the petitioner was employed by the former on his date of injury (8/5/94) and that he injured his right shoulder/arm in the course of such employment.  Respondent provided both medical treatment, including surgery, as well as temporary disability benefits tot he petitioner.  There is no dispute between the parties that (I) such treatment period continued through May 19, 1995, and (ii) the claim petition was filed on April 7, 2000.  Respondent alleges that it de-authorized Dr. Bigliano, M.D. as a treating physician as of May 19, 1995 and that the two year period for filing a claim petition in this matter expired during May 1997.

A review of the medical records offered by the parties discloses that (x) Dr. Bigliano was authorized to treat the petitioner through the referral from Dr. Preschel, (y) the petitioner underwent surgery (by Dr. Bigliani) during march 1995 and (z) made not less than 6 post-surgical visits to his surgeon during calendar years 1995 and 1996.  Petitioner also visited Dr. Bigliani during April 1997 and April 1998.  Following the April 1997 visit Dr. Bigliani wrote to Dr. Preschel noting that he was “following” the petitioner’s ongoing degenerative arthritis at the surgery site (right shoulder) and that he believed that the petitioner could continue to be treated conservatively.  In addition Dr. Bigliani stated that “I’ll see him in approximately one year to re-evaluate the progress of his arthritis.”  That re-evaluation was conducted on April 7, 1998.  Petitioner contends that the filing of his claim petitioner was timely since it occurred on the second anniversary of such visit.  I note that Dr. Bigliani’s office note for the 1998 visit indicates that the petitioner should return in 1999 for a further review of his condition.

Of further interest in this case is that until the respondent filed its motion to dismiss the claim petition for alleged failure to comply with the requirements of Section 51 it had taken no step(s) to notify the petitioner that it had terminated medical treatment.  Further, based upon representations made at oral argument and notwithstanding respondent’s allegation that it had de-authorized Dr. Bigliani during May 1995, it appears that respondent paid Dr. Bigliani for all treatment rendered through April 1997.  It is my understanding that such physician has not been paid for petitioner’s visit of 1998.

This matter must be distinguished from those cases where the treatment alleged is in fact an authorized visit limited to a medical examination for the purpose of determining whether the respondent will find the claim compensable.  Further, our courts have recognized that “Where medical treatment which could have been required under the statute is actually furnished by the employer, such treatment is considered ‘payment of compensation’ and a claim petition filed within two years of such ‘payment’ is within time.  (cits. omitted).  Schwarz v. Federal Shipbuilding and Dry Dock Co., 16 N.J. 243, 248 (1954).  In addition, both Sampson v. Thornton, 8 N.J. 415 (1952) and Witty v. Fortunoff, 286 N.J. Super. 280 (App. Div. 1996), support the premise that once a respondent has acknowledged the compensability of a claim and has commenced providing medical benefits the two year time limitation of Section 51 does not commence to run until the respondent has given notice to petitioner of its intention to cease providing benefits.  I also note that the Supreme Court has accepted the premise that medical visits made after the active phase of treatment has been completed are an integral part of the recovery process notwithstanding the absence of specific treatment in the course of such visit(s).  See Sampson, supra, at 422.

Witty, supra, is another case in point.  There the Appellate Division determined that the respondent, which had previously provided medical treatment to an injured employee, had the duty of providing the latter with notice of its intention of terminating such benefit(s) as a condition of commencing the limitation period provided under Section 51.  In arriving at such conclusion it stated that the principal factor was whether the conduct of the respondent had been such that the petitioner would be lulled into a “false sense of security” which might cause him/her to file a claim petition in a timely manner.

In the case at hand the respondent had failed to produce any evidence that it ever notified the petitioner that it had (I) de-authorized Dr. Bigliani, or (ii) elected to terminate petitioner’s medical treatment.  I find the case law I have cited above to be in point and for the reasons expressed above I further find that the claim petition filed April 7, 2000 was timely filed.

Accordingly, respondent’s motion will be denied and the latter will pay a stenographic fee of $100 to J. Trainor, Inc.  I urge the respective parties to this matter to proceed to obtain such medical examinations as are required to support their respective positions.  This case will be returned to the pre-trial list.

/s

Neale F. Hooley
Judge of Compensation