Opinion
DOCKET NO. A-5648-10T4
08-30-2012
LAURA PROANO, Appellant, v. NEW JERSEY VICTIMS OF CRIME COMPENSATION REVIEW BOARD, Respondent.
Bastarrika, Soto, Gonzales & Somohano, L.L.P., attorneys for appellant (Franklin G. Soto, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Olga E. Bradford, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from then New Jersey Victims of Crime Compensation Review Board.
Bastarrika, Soto, Gonzales & Somohano, L.L.P., attorneys for appellant (Franklin G. Soto, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Olga E. Bradford, Deputy Attorney General, on the brief). PER CURIAM
Appellant, Laura Proano, appeals from the final order and decision of the New Jersey Victims of Crime Compensation Board (Board) denying her claim for compensation for injuries she allegedly sustained as a result of a workplace assault. We affirm.
In September 2008, appellant was employed, on a part-time basis, by United Parcel Services (UPS) as a loader/unloader at its distribution center in Secaucus. According to appellant, on September 3, 2008, her supervisor, Thomas Gaffney, threw a step ladder at her, striking her foot and causing permanent damage. Appellant contends she has since been unable to work. Appellant did not immediately seek medical care but, two days later, was treated for an injury to her foot. She was assigned to light duty and continued to work until November 2008. She apparently filed a workers' compensation claim petition on the day of the incident or shortly thereafter in which she reported that she was "injured loading/unloading" and that she reported the injury to Gaffney. She subsequently collected workers' compensation benefits for the injuries.
On April 25, 2009, appellant spoke to police, reporting that she wanted to document an incident occurring on September 3, 2008, during which her supervisor threw a ladder at her, injuring her left foot. She did not file a formal complaint at that time. In January 2010, appellant once again reported the incident to police and, on February 5, filed a complaint against Gaffney. On that same date, the municipal court judge determined probable cause for the issuance of a summons had not been established and dismissed the complaint.
On May 21, 2010, appellant filed a claim with the Board, seeking compensation for medical and psychiatric counseling expenses as well as lost wages. The Board denied the claim and issued a Determination of Ineligibility letter on September 21, 2010, stating:
The crime occurred on September 3, 2008[,] and you did not file a police report until January 15, 2009, which is over the three [-]month filing limit. Pursuant to N.J.A.C. 13:75-1.5(b), the incident must have been reported to the police within three months of its occurrence or the date from which the claimant had knowledge or reason to believe that a crime had occurred.Appellant appealed this determination and the Board granted appellant a hearing, during which she explained the reasons for the delay in reporting the September 3, 2008 incident.
Appellant attributed the delay to her physical and mental state during the first three months after the incident and testified that she "has the evidence, the medical records of all the treatment she was undergoing and her mental state of anxiety and depression." She also testified that she was unaware of the Board or that she could apply for compensation until January 2010 when her treating podiatrist, Dr. Patrick Cain, recommended that she file a criminal complaint with the police.
In a written decision, the Board found that appellant failed to demonstrate good cause for the delay in reporting the alleged criminal offense and that what she reported to police was a simple assault, which is not a compensable offense pursuant to N.J.S.A. 53:4B-11. The present appeal followed.
On appeal, appellant raises the following points for our consideration:
POINT ONE
RESPONDENT FAILED TO GIVE APPELLANT'S APPLICATION DUE CONSIDERATION BY COMPLETELY IG[]NORING THE EVIDENCE THAT ESTABLISHED "GOOD CAUSE" FOR FILING A POLICE REPORT BEYOND THE THREE[-]MONTH[] STATU[]TORY PERIOD.
POINT TWO
THE SEACAUCUS [SIC] POLICE DEPARTMENT CLASSIFYING THE ATTACK AGAINST APPEL[L]ANT AS A "SIMPLE ASSAULT" SHOULD NOT HA[VE] RESULTED IN RESPONDENT DENYING THE CLAIM AND THE BOARD ERRED IN DETERMINING THAT SUCH AN OFFENSE I[S] NOT A COMPENSABLE CRIME UNDER THE STATUTE.
POINT THREE
THE RESPONDENT AGENCY[']S DECISION MUST BE REVERSED BECAUSE IT ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER WHEN IT CHOSE TO DENY APPELLANT'S CLAIM SEEKING BENEFITS BASED ON THE EVIDEN[C]E THAT WAS PRESENTED TO THE BOARD.
Our review of an agency's final decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Ordinarily, we will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
At the time appellant sustained her injuries, N.J.S.A. 52:4B-18 (the Act) required crime victims seeking to recover compensation from the Board to file an application for compensation within two years of the date on which the injury was inflicted, unless the victim was able to establish good cause for the delay in filing the application. The Act also required that the victim report the offense to police within three months of its occurrence. Ibid. Public Law 2011, Chapter 165 amended the Act, effective March 1, 2012, to enlarge the reporting times.
Prior to the April 25, 2012 date for which this appeal was listed for consideration, we received correspondence from the Board's attorney alerting us to the amendment and the Board's position that the amendments were not to be applied retroactively. Appellant did not submit a response to this correspondence or file a motion to supplement the record with additional briefing on this issue. We have nonetheless elected to briefly address this issue.
As amended, the Act provides, in pertinent part, that no order to compensate a victim of a violent crime will issue unless
the application has been made within three years after the date of the personal injury or death or after that date upon determination by the office that good cause exists for the delayed filing, and the personal injury or death was the result of an offense listed in [N.J.S.A. 52:4B-11] which had been reported to the police or other appropriate law enforcement agency within nine months after its occurrence or reasonable discovery[.]
[Ibid.]
The effect of the amendment is to enlarge the reporting and filing times for which crime victims may seek compensation for their injuries. Thus, under the amended statute, appellant's report to police on April 25, 2009 would have been timely. Notwithstanding the remedial nature of the Act, the reasoning articulated by then Judge Long, in Kendall v. Snedeker, 219 N.J. Super. 283 (App. Div. 1987), in construing a similar remedial statute, the Unsatisfied Claim and Judgment Fund (UCJF), N.J.S.A. 39:6-60 to -91, persuades us that our review of the Board's decision here must proceed pursuant to the former statute because the amended statute provides only prospective relief.
In Kendall, the question before the court was whether the amendment to the UCJF, which eliminated the inter-spousal ban for recovery under the UCJF and barred only the uninsured owner and operator from recovering benefits, should be accorded retroactive application. 219 N.J. Super. at 284. While acknowledging the amendment expanded the category of persons who could recover from the UCJF, Judge Long, in addressing the curative exception to the generally recognized principle that legislation is to be accorded prospective application, wrote:
Nor can the curative exception be invoked merely because an amendment is deemed to better a statutory scheme. Presumably, each time the Legislature amends a statute it acts in good faith and seeks, by the amendment, to improve the scheme. If this was all that was required in order to meet the curative exception, every amendment would automatically be subject to retroactive application and the exception would engulf the rule of prospectivity. This cannot be countenanced. As we have observed, there are reasons based on considerations of fairness for the rule of prospectivity. This is why the exceptions to the rule have been carefully circumscribed. To consider an enactment which 'improves' the statutory scheme (in itself a painfully subjective determination) as meeting the curative exception is at odds with the fundamental principal of fairness that new laws should not affect situations which predated them.
[Id. at 289.]
We find this reasoning persuasive here, particularly when the purpose of the reporting requirements under the Act is to "ensure that the Board's limited resources benefit[] only those persons who me[e]t the detailed criteria for eligibility under the Act," a purpose similar to other statutes involving public funds. See White v. Violent Crimes Comp. Bd., 76 N.J. 368, 379-84 (1978) (analogizing the notice requirements under the Act to similar notice requirements under the UCJF and the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, 9). Therefore, we consider appellant's appeal under the pre-amendment time constraints, which required appellant to report the offense to police within three months of its occurrence.
We observe that the provision requiring a victim to establish "good cause" relates to the delay in filing a claim with the Board. N.J.S.A. 52:4B-18. There is no comparable "good cause" provision with regard to the time period in which to report the offense to the police. Under the former law, the victim was required to report the offense to police within "[three] months after its occurrence or reasonable discovery." Ibid. It is undisputed that appellant first reported the incident to police on April 25, 2009, although her doctor reportedly recommended that she report the matter to the police in January 2009. Notwithstanding the absence of a corresponding "good cause" exception for reporting the offense to the police, the Board considered whether appellant established good cause for the delay and, after reviewing the evidence, concluded she had not. This finding is supported by substantial credible evidence in the record. Greenwood, supra, 127 N.J. at 573.
First, unlike the rape victim in White, whose physical and mental incapacitation following the rape was well-documented, there is no evidence that appellant suffered from any physically or mentally debilitating injury. 76 N.J. at 387-88. She sought no immediate medical care, continued to work part-time through November, was medically discharged to return to work in November 2008, albeit light duty, and was able to file a petition for workers' compensation benefits. There is no evidence that she was under the care of a psychiatrist, psychologist or therapist for her alleged emotional injuries. The first reference to any mental injury is listed in the second petition, which appellant filed on April 25, 2009, the same date she first reported the incident to police.
Second, in her appellate brief, appellant contends "her employer (UPS) had dissuaded her from pursuing a criminal complaint against her supervisor[.]" She made no such allegation during her testimony before the Board. Her workers' compensation claim petition makes no reference to her supervisor throwing a ladder at her. Instead, the first claim petition states that the injury occurred while she was "loading/unloading." It is only in the second claim petition that she states: "[p]etitioner struck by step lad[d]er."
Given the absence of any evidence demonstrating that appellant was in a physically and mentally debilitating condition in the months following the alleged attack, we cannot conclude the Board's decision denying appellant's claim for failure to timely report the offense to police was arbitrary, capricious, or unreasonable.
In view of our determination that the Board's conclusion that appellant failed to timely report the incident to police is dispositive of this appeal, we need not address whether the injury reported was a simple assault, an offense for which compensation may not be awarded under the Act, or whether the injury was the result of an offense for which compensation may be awarded. Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION