SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1625-19

GARY STREEPER,

Petitioner-Appellant,

v.

STATE OF NEW JERSEY,

Respondent-Respondent.

__________________________

Submitted June 30, 2021 – Decided March 8, 2022

Before Judges Accurso and DeAlmeida.

On appeal from the New Jersey Department of Labor 

and Workforce Development, Division of Workers' 

Compensation, Claim Petition No. 2005-11028.

Joel F. Abramson, attorney for appellant.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Cheryl A. Ward, Deputy Attorney 

General, on the brief).

The opinion of the court was delivered by 

DeALMEIDA, J.A.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-1625-19

Petitioner Gary Streeper appeals from the November 8, 2019 order of a 

judge of compensation dismissing, as untimely filed, his application for review 

or modification of a compensation award. We vacate the order and remand.

I.

Streeper is employed by the State. On April 15, 2003, he injured his right 

leg and knee in an accident at work. He subsequently filed a claim for workers'

compensation benefits. The claim, which was assigned petition number 05-

11028, was accepted by the State as compensable. Streeper subsequently 

received authorized medical treatment for his injuries. On September 8, 2008, 

the workers' compensation court entered a judgment approving a settlement of 

Streeper's claim for the 2003 incident.

Streeper subsequently sought additional medical treatment and 

compensation for his injuries. The State authorized right knee replacement

surgery, follow-up medical treatment, and additional compensation. He last 

received temporary disability compensation for the 2003 incident on April 8, 

2011, and last received payment for medical treatment for the 2003 incident on 

February 1, 2012.

On July 24, 2019, Streeper filed an application for review or modification 

of his award relating to the 2003 incident. He alleged the injuries to his right 
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leg and knee had worsened after entry of the judgment memorializing the 

settlement. He noted the right knee replacement surgery as evidence of his 

worsening condition.

The State filed an answer asserting that the workers' compensation court 

lacked jurisdiction to review Streeper's application because it was filed beyond 

the two-year statute of limitations. See N.J.S.A. 34:15-27 (providing that an 

application for review or modification of a compensation award must be filed 

within two years of the date when the injured person last received a payment on 

the award). The compensation court considered the State's assertion to be a 

motion to dismiss the application.

Streeper opposed the motion. He acknowledged that the application to 

review or modify the award relating to the 2003 incident was filed beyond the 

statutory limitations period. He argued, however, the judge of compensation 

should exercise her inherent authority to: (1) relax the two-year period 

established in N.J.S.A. 34:15-27 in the interest of justice and to effectuate the 

remedial purpose of the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 

to -146; (2) reopen the judgment relating to the 2003 claim on the basis of a 

mistake or for other good cause; or (3) amend a then-pending, timely filed, 

November 25, 2013 application for review or modification of an award he 
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received for a claim relating to injury he suffered in 2000 to include a request 

for review or modification of the award relating to the 2003 incident.

In support of his arguments, Streeper explained that in 2010 he had 

multiple compensation claims regarding distinct injuries simultaneously 

pending before the compensation court. Those claims included a petition he 

filed on March 7, 2002, for an injury to his left leg and knee in a work-related 

incident in 2000. That claim was assigned claim number 02-7846 and was 

settled in 2005, reopened in 2007, and settled again on February 7, 2009.

Streeper stated that when he sought additional medical treatment for his 

right leg and knee relating to the 2003 incident, he also sought additional 

medical treatment for his left leg and knee relating to the 2000 incident. The 

State provided the treatment requested for both injuries without the need to file 

an application for review or modification of either claim, even though both 

claims had, at that point, been settled. Streeper received a left knee replacement 

on October 20, 2010, two months prior to the replacement of his right knee.

According to Streeper, beginning in September 2010, at the direction of 

the Division of Workers' Compensation (Division), the additional medical 

treatment for both the 2000 incident and the 2003 incident were administered 

under a single petition number, 02-7846. He argued that the administrative 
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treatment of the claims as a single claim left his counsel with the impression that

both claims would in the future be treated as a single claim under petition 

number 02-7846. In addition, he noted that Horizon Casualty Services, the 

insurance company that administers the State's workers' compensation claims,

assigned a single claim number in its records to the additional medical treatment 

relating to both the 2000 and 2003 incidents, including the knee replacements.

On November 25, 2013, Streeper's counsel filed an application for review 

or modification of final award under petition number 02-7846 intending it to 

apply to both the 2000 and 2003 incidents. The application, however, states that 

the injury at issue occurred on March 10, 2000, and was last settled on February 

2, 2009. Those dates correspond to the 2000 incident. There is no indication 

on the face of the application that it applies to the award for the 2003 incident.

Streeper also submitted a "memo to file" dated September 28, 2010, in 

opposition to the motion. The memo, which was prepared by his counsel, states 

that "Horizon consolidated [Streeper's] two claim petitions under one claim 

number" and that he "discussed consolidating the two cases for and at the time 

of settlement" with a representative of the Division.

Streeper also submitted a January 9, 2018 "Memo to File" prepared by his 

counsel. That memo, written more than four years after the filing of the 
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November 25, 2013 application, stated that during a telephone call that day a 

representative of the Division "informed me that the 2003 claim for C.P. 05-

11028 Right Knee is OPEN . . . ."

Three months later, a Division investigator informed Streeper's counsel 

by email that "[t]he 2003 claim for R-Knee is unfortunately out of 2 years limit 

and it has been closed. There is a judgment on this claim. There is no re-opener 

in our system. Mr. Streeper got his payment until 2011 and [h]e got treatment 

until 2012."1

The judge of compensation issued an oral opinion granting the State's 

motion. She found that the July 24, 2019 application was filed more than seven 

years after Streeper's final receipt of a payment on February 1, 2012, long past 

the two-year statute of limitations set in N.J.S.A. 34:15-27. The judge 

concluded she was without authority to depart from the two-year statute of 

limitations and dismissed Streeper's July 24, 2019 application for lack of 

jurisdiction. As the judge explained:

I am sorry, sir, but I have to grant a [m]otion to 

[d]ismiss for failure to provide a request to modify the 

prior award within the two-year statutory guidelines. 

It's clear to me that the statute –

1

 The term "reopener" appears throughout the record. It appears to refer to an 

application for review or modification of a formal award.
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I'm a statutory court. I'm not a court of anything else. 

I'm a statutory court. The statutory guidelines mandate 

that an [a]pplication for [r]eview or [m]odification 

must be filed within two years of the last benefit. The 

last benefit was in 2011.

Although apparently finding that Streeper's counsel was under the 

mistaken impression that the Division was administratively treating the claims 

relating to the 2000 incident and the 2003 incident together under petition 

number 02-7846, the judge concluded she lacked the authority to amend the 

November 25, 2013 application to include both claims. The judge, responding 

to Streeper's counsel's remark that he believed the two claims were being 

administered under a single petition number, stated:

I believe that you genuinely thought that that's what 

was occurring. But, again, unfortunately, I am bound 

by the statutory guidelines.

The last benefit paid on this claim was in 2012. The 

[a]pplication for [r]eview and [m]odification was not 

filed until August [sic] of 2019, seven years later; 

therefore, it is in violation of the statutory guidelines 

and I'm going to dismiss the claim.

This appeal follows. Streeper argues the judge of compensation erred 

when she failed to recognize and exercise her authority to correct his counsel's 

reasonable mistake by either reopening the judgment relating to the 2003 claim 
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or amending the November 25, 2013 application to include a request for review 

or modification of the formal award relating to the 2003 incident.

II.

"A judge of compensation's factual findings are entitled to substantial 

deference." Bellino v. Verizon Wireless, 435 N.J. Super. 85, 94 (App. Div. 

2014). Our "review is limited to 'whether the findings made could reasonably 

have been reached on sufficient credible evidence present in the record, 

considering the proofs as a whole[.]'" Lindquist v. City of Jersey City Fire Dep't, 

175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 

(1965)). However, this court owes "no particular deference to the judge of 

compensation's interpretation of the law." Sexton v. Cty. of Cumberland, 404 

N.J. Super. 542, 548 (App. Div. 2009).

The WCA compensates employees for personal injuries caused "by 

accident arising out of and in the course of employment . . . ." N.J.S.A. 34:15-

7. Recovery under the WCA is "the exclusive remedy for an employee who 

sustains an injury in an accident that arises out of and in the course of 

employment." McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 490 (App. Div. 

2011) (quoting Ahammed v. Logandro, 394 N.J. Super. 179, 190 (App. Div. 

2007)). The Act "provide[s] a method of compensation for the injury or death 
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of an employee, irrespective of the fault of the employer or contributory 

negligence and assumption of risk of the employee." Harris v. Branin Transp., 

Inc., 312 N.J. Super. 38, 46 (App. Div. 1998).

After a compensation award has been issued, an injured employee may 

seek additional medical treatment and benefits when the incapacity caused by 

an injury increases. N.J.S.A. 34:15-27, however, places a limit on when such 

claims must be filed. The statute provides in relevant part:

Upon the application of any party, a formal award, 

determination, judgment, or order approving settlement 

may be reviewed within two years from the date when 

the injured person last received a payment on the 

ground that the incapacity of the injured employee has 

subsequently increased.

[N.J.S.A. 34:15-27.]

We have held that "[t]he two[-]year time limit mandated by N.J.S.A. 

34:15-27 for submitting an application for review or modification is a 

jurisdictional requirement." Bey v. Truss Sys., Inc., 360 N.J. Super. 324, 327 

(App. Div. 2003). "The Workers' Compensation Court is an administrative 

court, not a constitutional court. Its jurisdiction is limited to that granted by the 

Legislature and therefore 'cannot be inflated by consent, waiver, estoppel or 

judicial inclination.'" Id. at 327 (quoting Riccioni v. Am. Cyanamid Co., 26 N.J. 

Super. 1, 5 (App. Div. 1953)).
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The holding in Bey is the prevailing general principle regarding the 

timeliness of an application for review or modification of formal compensation 

awards. We agree, however, with Streeper's argument that the legal inquiry does 

not end there. Our precedents also recognize that "there are exceptional 

circumstances that militate against blindly applying" limitations periods in the 

WCA. Camp v. Lockheed Elec., Inc., 178 N.J. Super. 535, 546 (App. Div. 

1981). When warranted by the facts and necessary to effectuate the remedial 

purposes of the WCA, a judge of compensation may depart from "the coldly 

literal import" of statutory time limits. See Barr v. Pascack Valley Hosp., 155 

N.J. Super. 504, 511 (App. Div. 1978) (quoting Paul v. Baltimore Upholstering 

Co., 66 N.J. 111, 136 (1974)).

The holding in Camp was predicated on our earlier decision in Hyman v. 

Essex Cty. Carpet Cleaning Co., 157 N.J. Super. 510, 513-16 (App. Div. 1978). 

There, a judge of compensation determined that a judgment he entered several 

years earlier did not properly reflect his determination that the employee was 

permanently disabled. When the employee filed an application for review or

modification of his award after expiration of the two-year period in N.J.S.A. 

34:15-27, the judge issued an amended judgment declaring the employee 

permanently disabled. Id. at 514-15. The employer objected, arguing that the 
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compensation court lacked authority to review or modify the judgment because 

the employee's application had been filed outside the statutory period in N.J.S.A. 

34:15-27, as well as that in N.J.S.A. 34:15-54, which established a one-year 

period in which to seek to reopen a judgment. Id. at 515.

We rejected the employer's argument, finding we had "no doubt at all" 

that the compensation court "has the authority to open its judgments to correct 

a mistake . . . ." Id. at 516. We continued,

[i]rrespective of the absence of express statutory 

authority and a one-year limitation imposed upon such 

a reopening in certain circumstances, N.J.S.A. 34:15-

54, it is abundantly clear that the Division has the 

inherent power "comparable to that possessed by the 

courts ([R. 4:50]), to reopen judgments for fraud, 

mistake, inadvertence, or other equitable ground."

On the other hand, it is equally clear that a decision to 

reopen must not be arbitrary or based on whim. The 

presence of a legally adequate motivating element must 

be manifest.

[Ibid. ]

We held that when the compensation court considers requests to reopen a 

judgment to correct a mistake, "attention to the equities involved is imperative." 

Ibid.

In Camp, an employee filed a petition seeking compensation for injuries 

suffered in a fall. 178 N.J. Super. at 539. She was also injured a few months 
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later in a motor vehicle accident on her way home from authorized medical 

treatment related to the fall. Id. at 540. Her petition was not amended to seek 

compensation for injures related to the accident. Id. at 539. At the time, whether 

injuries suffered in an accident while returning from medical treatment were 

compensable was an unresolved question. Id. at 543. After a hearing, the judge 

of compensation determined that the employee, although injured in the fall, did 

not have a permanent disability from that incident alone. The judge found that 

the injuries the employee suffered in the fall were aggravated by the car 

accident, which may have contributed to any disability she suffered. Id. at 541.

On appeal, we concluded that judge of compensation's conclusion 

regarding an absence of permanent disability was not supported by the medical 

evidence adduced at the hearing. Id. at 542. In addition, because both the fall 

and the accident contributed to the disability, we exercised our original 

jurisdiction and decided injuries suffered in an accident on the way home from 

authorized medical treatment related to a different compensable incident are 

themselves compensable. Id. at 543-54.

As a result of this conclusion, we were faced with the question of "whether 

petitioner is now time barred from alleging that the . . . accident was 
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compensable. N.J.S.A. 34:15-51 provides that the claim must be filed within 

two years of the accident . . . ." Id. at 546. We concluded that

[i]t is indubitable that had petitioner's attorney 

recognized that the second accident was compensable, 

he would have amended the petition below to include 

it. It also must be assumed that the judge below did not 

recognize the compensability of the auto collision, else 

he should have raised it in the interest of justice.

[Id. at 545.]

We determined that the omission by the petitioner's counsel was a mistake 

that was within the inherent power of the court to correct. "Here there was an 

apparent mistake not to allege compensability of the auto accident." Id. at 547. 

Because the auto accident was not "a new accident requiring a new petition but 

rather a change in [the petitioner's] condition flowing" from the fall, we held 

that the court of compensation should have permitted an amendment of the 

original petition, despite the expiration of the statutory filing deadline. Id. at 

547-48.

In light of these precedents, the judge of compensation erred when she 

concluded that she lacked the authority to consider whether Streeper's counsel's 

purported mistake with respect to the administrative consolidation of the two 

claims warrants either reopening the September 8, 2008 judgment on the 2003 

claim or amending the November 25, 2013 application for review or 
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modification to include both the 2000 and 2003 claims. We remand for the judge 

of compensation to undertake that review with consideration of both the facts 

and equities in light of the remedial purpose of the WCA.

We do not express a view with respect to whether Streeper's request for 

relief is warranted. We note, however, that the State does not dispute that it 

provided additional medical treatment, including two knee replacements, 

relating to both the 2000 incident and the 2003 incident without the need to 

reopen either claim, both of which had been resolved through entry of 

judgments. Nor does the State dispute that medical treatment for both sets of 

injuries was provided at the same time and under a single claim number by the 

State's insurance carrier.

Streeper's counsel claims he was instructed by Division personnel to treat 

the two claims under one docket number, that his objections to this approach 

were rejected by the Division, that he was instructed by the Division to seek 

consolidation of the two claims at the time of settlement of his application for 

review or modification, and that more than four years after the filing of the 

November 25, 2013 application, a Division representative informed him that the 

2003 claim was open. The veracity of these representations, which, if proven 

true are critical to the legal analysis, should be determined on remand.
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The judge of compensation should also determine what transpired 

between the parties in the period between the filing of the November 25, 2013 

application and the 2018 email from a Division representative expressing the 

opinion that the statute of limitations barred review of the 2003 claim. It is not 

clear from the record whether, during that nearly five-year period, Streeper 

pursued, without objection from the State, review or modification of the award 

relating to both the 2000 and 2003 claims.

The November 8, 2019 order is vacated and the matter is remanded for 

further proceedings consistent with this opinion. We do not retain jurisdiction.