The mother of a surviving 4-year son of an injured worker filed a claim for dependency benefits for the son six-months past the death of the injured worker, the father of the son. On appeal, the mother alleged that the statute of limitation was tolled since the child was an infant.
Infancy does not toll the statute of limitations in a workers compensation dependency action for a minor child.
“N.J.S.A. 34:15-41 clearly states that claims are barred after two years.
... The Appellate Court has held in numerous cases that tort actions, death actions and workers ' compensation proceedings are sufficiently distinctive in purpose, function and effect to rationally warrant legislative differentiation in the respect of limitation provisions including the incidence of tolling. Had the legislature intended the time limitations be tolled for an infant until he reaches majority, they could insert that provision. I can't, as a [j]udge of [c]ompensation ... do what the legislature has express[ ]ly or inferentially [de]clined to do. I am bound by N.J.S.A. 34:15-41 and N.J.S.A. 34:15-51 . The language in those statutes is unequivocal.
“In rejecting Nacole's argument that LaFage v. Jani, 166 N.J. 412 (2001), mandated a contrary interpretation of the statute, the judge noted:
There was an amendment to [N.J.S.A.] 34:15-51 in May of 2001 after the Lafage decision and there was no change to the two-year requirement .... [I]f the legislature was so inclined after the LaFage decision, they had the opportunity at that time or any time since February of 2001 when LaFage was decided to change our statute, but they have elected not to ....
“We reject Nacole's argument and decline the invitation to modify the Legislature's enactment when its meaning is clear.
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