Appellate Division Disproves The Old Saying “If At First You Don’t Succeed, Try, Try Again” In Litigation Involving Out Of Time Appeals And Frivolous Filings. Respondents Need To Be Aware Of The Frivolous Litigation Statute.

The unreported Appellate decision in Townsend v. New Transit, A-0559-20, decided February 2, 2022, should now be required reading for all pro se litigants. Claude Townsend, a bus driver for New Jersey Transit, was involved in a bus accident on January 29, 2008. He filed a Claim Petition through counsel, but ultimately decided to proceed pro se. October 4, 2010, the compensation court dismissed the Petition with prejudice for his failure to sustain the burden of proof.  Following the Order of Dismissal, Townsend took an immediate appeal. On February 9, 2011, the appeal was dismissed for his failure to prosecute it.

In 2016, Townsend filed an application with the Division of Workers Compensation (compensation court) seeking to reopen or modify its prior order dismissing his petition with prejudice. On July, 25, 2016, the court granted respondent’s motion to dismiss Townsend’s application with prejudice because it was untimely.

About two years later, on August 13, 2018, Townsend filed an application in the Appellate Division to reopen his prior claim petition. This application was treated as an appeal from the compensation court’s July 25, 2016 order. The Appellate Division dismissed the appeal with prejudice on September 11, 2018 because it was untimely.

A few weeks later, Townsend filed yet another application with the compensation court and again asked for a review of the prior dismissal of his claim petition. The grounds he alleged for overturning the dismissal including the Judge who entered the 2010 dismissal was biased against him, and that since he had since been awarded Social Security Disability benefits, respondent New Jersey Transit should be forced to pay him workers compensation benefits. Respondent filed a Motion to Dismiss with prejudice and a Motion for penalties pursuant to N. J. S. A. 2A:15-59.1, as Townsend’s pleadings were frivolous in nature. On October 7, 2020, the compensation court granted Respondent’s Motions and ordered Townsend to reimburse New Jersey Transit for costs and a portion of its attorney fees. On February 2, 2022, the appellate court affirmed the compensation judge’s decision.

For litigation to be considered frivolous under the above statute, the court must find that either:

            (1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

           (2) The non-prevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

In its decision, the Appellate Division clearly found the repeated applications and appeals to be frivolous.

The Division of Worker’s compensation does not have any administrative codes nor statutes which prevents the injured worker from refiling a claim petition for the same date of accident as many times as he or she wishes. Likewise, the injured worker can appeal as a matter of right to the appellate court once he / she receives a final decision from the workers’ court.

Therefore, the only option prevailing parties have to combat against the Townsends of the world is to file Motion to Dismiss for frivolous litigation and seek reimbursement for attorney fees and costs.  Filing Motions pursuant to N.J. Stat. 2A:15-59.1 is an under-utilized tool in workers’ compensation court which more attorneys may consider in the future.

If you have any questions, comments or concerns about this topic or other issues related to your worker’s compensation needs, please feel free to contact the workers’ compensation group here at Brown & Connery, LLP via email or call 856-854-8900.

By: Stephanie Leigh Meredith, Associate at Brown & Connery, LLP