Key Defenses

Kevin Durnien worked as a tractor-trailer driver for United Parcel Service (UPS) from 1996 to 2008.  He was diagnosed with Parkinson’s disease in 2003 but continued to drive for UPS for several years.

On October 25, 2007, Durnien was injured when he fell on his elbow while making a warehouse pickup.  He injured his rotator cuff and underwent arthroscopic surgery on his shoulder.  The case was accepted and benefits were paid.

Several weeks after his surgery, Durnien noticed that his Parkinson’s disease was getting worse:  he was experiencing tremors and his medication was increased.

Durnien filed a claim petition against UPS on December 5, 2007 for his shoulder injury.  On April 6, 2009, he applied for Second Injury Fund benefits, claiming he was totally disabled as a result of a combination of a work injury and a preexisting Parkinson’s condition.  Durnien was separated from his employment in October 2008.

The matter was tried before the Chief Judge of Compensation, the Honorable Peter J. Calderone.  Four experts testified in the case, two for each side.  The Chief Judge found that the work injury did not materially worsen petitioner’s Parkinson’s disease, nor was petitioner entitled to Second Injury Fund benefits.  However, he did award petitioner 20% permanent partial disability for the shoulder.  Petitioner appealed.

The Appellate Division first focused on the issue of whether the work accident materially worsened petitioner’s Parkinson’s disease.  The Court noted that Judge Calderone rejected the testimony of petitioner’s neurologist, Dr. Bereanu, because she was “not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner’s Parkinson’s Disease in some non-measurable way.” 

In respect to respondent’s neurologist, Dr. Steven Mandel, the Court observed that the Chief Judge found his testimony to be sound in stating that the Parkinson’s condition was not aggravated by the work accident.  The Chief Judge was impressed as well that Dr. Mandel actively treats patients with Parkinson’s disease.

In regard to the entitlement to Second Injury Fund benefits, the Court again affirmed the Chief Judge because the claimant, following his separation from employment in 2008, actually applied for unemployment benefits.  As the Court said, one must be able to work and be available for work to obtain unemployment benefits under N.J.S.A. 43:21-4 (c) (1).  In essence, the petitioner’s application for unemployment benefits was inconsistent with his contention that he was totally disabled, which is a requirement for Second Injury Fund eligibility.

The Court also agreed with the Chief Judge that an independent reason to reject the Second Injury Fund claim was that petitioner’s Parkinsons’s condition progressed AFTER the work injury.  The statute precludes Fund benefits “[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.”  N.J.S.A. 34:15-95 (d).

While it was true that the Parkinson’s condition preexisted the work injury, petitioner had been able to work and had been certified for a CDL license.  The condition apparently worsened after the work accident for reasons unconnected to the accident.  The Court said, “Although Durnien’s physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL.  He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.”

This case illustrates several important points.  First and foremost, practitioners need to spend time choosing the right expert witness. In this case, UPS made a wise choice in selecting its expert because he was well qualified and treated patients with Parkinson’s disease.  Secondly, Second Injury Fund eligibility depends on preexisting conditions and will not be available to those whose prior condition worsens after the work injury and only then become totally disabled.  Lastly, the case illustrates that an expert’s testimony must contain more than just a bald assertion that a given condition is work related.  The Chief Judge rejected the expert opinion of the petitioner’s neurologist because there was no scientific foundation for it.

This case may be found at Durnien v. United Parcel Service and Second Injury Fund, A-5857-12T1 (App. Div. August 8, 2014).

Rodney Farnath fell off a ladder at work and filed a motion for medical and temporary disability benefits against 34^th Street Markets, LLC.  Farnath was a limited partner in the LLC.  Farm Family Casualty Insurance Company, the workers’ compensation carrier for the employer, declined coverage on the grounds that the policy issued to the LLC did not provide coverage for Farnath.

There was no dispute that Farnath did not seek coverage for himself under the policy but he argued that the New Jersey Workers’ Compensation Act requires liberal construction in favor of coverage.  He also argued that as a member of an LLC he must be considered an employee.

The Judge of Compensation, the Hon. Arthur J. Marchand, ruled in favor of Farm Family and the Appellate Division affirmed the dismissal of this case.  Both courts focused on the language of N.J.S.A. 34:15-36, which provides:

 A self-employed person, partners of a limited liability partnership, members of a limited liability company or partners of a partnership who actively perform services . . . shall be deemed an ‘employee’ of the business . . . for purposes of receipt of benefits and payments of premiums . . . if the business . . . elects . . . to obtain coverage for the person, the limited liability partners, the limited liability company members or the partners.

The court said that the statute allows a member of a limited liability company to obtain workers’ compensation coverage if he or she “elects” to do so.  “Here, Farnath did not elect to purchase the additional coverage.  Consequently, he is not an employee within contemplation of the Act.”   The court observed that the Legislature specifically amended this statute in 1999 to require that a limited partner is not covered unless the business elects to obtain coverage for that member of the limited liability company.

This provision is important for practitioners to know because it is quite different from the general definition of “employee,” which is broadly construed to mean anyone who performs services for an employer for financial consideration.  Limited partners are treated differently as the business must elect coverage for them.  The case can be found at Farnath v. 34^th Street Market, LLC, A-1317-12T1 (App. Div. March 28, 2014).

New Jersey has a strong fraud statute, and it applies both to employees and employers.  Most of the cases that have been highlighted in this blog have concerned employees.  However, in a recent development, a Spring Lake, New Jersey man, was sentenced to 180 days in jail, 150 days of community service, and three years of probation, for workers’ compensation fraud.  He was also ordered to pay full restitution for his participation in third degree insurance fraud.

Charles Kelcy Pegler Sr., 56, was the President of a roofing company called Roof Diagnostics, Inc. (“RDI”), which was located in Wall Township, N.J. As president of the company, which employs nearly 400 people, Pegler indicated in his application for insurance to New Jersey Casualty Insurance Company that RDI was not a roofing company, that RDI did not employ roofers, and that its employees did not engage in the repair or maintenance of roofs.  The facts were otherwise.  Between June 11, 2003 and October 5, 2009, RDI paid $265,044 less in workers’ compensation insurance premiums than the company would have paid had Pegler accurately represented the nature of the business.

Additionally, Pegler falsely represented the nature of RDI’s business to USF Insurance Company, currently named Atain Insurance Company, claiming that all roofing services performed by RDI were carried out by subcontractors. RDI thereby avoided $134,087 in general liability insurance premiums that it legally owed to USF.

Pegler was charged on December 19, 2013 in a State Grand Jury indictment and entered a guilty plea on April 17, 2014 before the Honorable Anthony J. Mellaci of the Superior Court of New Jersey. The Acting Attorney General, John J. Hoffman, made the following comments:

This defendant had a legal and moral obligation to provide full and adequate workers’ compensation insurance coverage for his employees. By failing in this duty, Mr. Pegler defrauded not just his employees and his insurance company, but also honest, hard-working New Jerseyans who are forced to pay increased premiums to cover the costs of the fraud.

New Jersey’s Acting Insurance Fraud Prosecutor Ronald Chillemi warned, “The jail time imposed upon this defendant should act as a deterrent to anyone who fails to provide adequate and lawful workers’ compensation insurance.”  He added, “Such frauds will not be tolerated and will be investigated and prosecuted to the fullest extent of the law.”

This case serves as a clear reminder to employers that misrepresenting the nature of one’s business to lower workers’ compensation costs constitutes fraud and will be strongly penalized.

The State of New Mexico has a Compassionate Care Act, which provides for medical marijuana when a patient is certified for the program by his or her health care provider.  In the case of Vialpando v. Ben’s Auto. Servs., 2014 N.M. App. LEXIS 50 (N.M. Ct. App. May 19, 2014), the New Mexico Court of Appeals affirmed a decision of a Judge of Compensation requiring the worker’s employer to reimburse him for the cost of medical marijuana.

Mr. Vialpando was seriously injured on June 9, 2000.  He underwent multiple back procedures leading to a 99% permanent partial disability.  One doctor described his pain as “high intensity multiple-site” chronic pain.  Vialpando had been taking multiple narcotic-based pain relievers and multiple anti-depressant medications.

On April 8, 2013, Vialpando filed an application for approval of medical treatment for medical marijuana.  He had been certified for the program by two physicians.  The Judge of Compensation found that the worker was “entitled to ongoing and reasonable medical care,” including medical marijuana, and ordered the employer to pay for the care.

The employer appealed and made several interesting arguments.  First, the employer argued that the New Mexico Workers’ Compensation Act did not authorize reimbursement for the costs of medical marijuana.  The court noted that an employer is required to provide an injured worker with “reasonable necessary health care services from a health care provider.”  However, the court conceded that the list of health care providers does not include a dispenser of medical marijuana under the State’s Compassionate Care Act.  Nor has the Director of the Division of Workers’ Compensation approved a dispenser of medical marijuana as a health care provider.

On the other hand, the Act does define “services” as “health care services, . . . procedures, drugs, products or items provided to a worker by an health care provider, pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury or occupational disease. . . “  Based on this definition, the court found that medical marijuana is a product from a supplier that may be reasonable and necessary for an employee’s treatment.

By defining ‘services’ as including a product from a supplier that is reasonable and necessary for a worker’s treatment, the regulations do not contemplate that every aspect of a worker’s reasonable and necessary treatment be directly received from a health care provider.  Such a requirement would be unworkable. A worker’s treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment.

As for the distinction that a doctor does not “prescribe” medical marijuana, but rather the employee gets certified to the New Mexico program, the court said it is unnecessary that each and every service must be provided by a health care provider.

The employer also argued that medical marijuana should be viewed as a prescription drug, and since a doctor may not order medical marijuana, it should not be reimbursable under workers’ compensation.  The court rejected this argument as well. “A doctor may not order medical marijuana but may certify a patient to enroll in the medical cannabis program.” The court said that the definition of “services” is broader than the definition of a “prescription drug.”  Services include non-prescription drugs and products not necessarily prescribed by licensed pharmacists.  The court did concede that medical marijuana is a controlled substance and a drug but it reasoned that it makes no difference whether a pharmacist can prescribe it because the program authorized by the Department of Health is itself licensed.

Lastly, the employer contended that the court order requires the employer to violate federal law because marijuana is classified as a Schedule I Controlled Substance and is generally illegal to use or possess.  The court first observed that the employer was not specifically challenging the New Mexico Compassionate Care Act.  Rather, the employer was arguing that it was committing a crime in complying with the court order.  “However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute.”

This case is one of the first to deal with the employer’s obligation to pay for medical marijuana through workers’ compensation, and it will not be the last.  The analysis in the New Mexico case raises complex state and federal issues. What are your thoughts on this decision and its implications to employers in connection with the New Jersey Compassionate Use Medical Marijuana Act?

Bobbie Kehoe and Scott Sunkimat began cohabiting in their home in Point Pleasant, New Jersey in 1999.  They made a life-long commitment to each other to spend their lives together but declined to marry.  They shared utility bills and bank accounts and both of their names were on the deed to their home.  Bobbie Kehoe was the sole beneficiary of Scott Sunkimat’s retirement plan, but she was not the beneficiary of his life insurance policy.  The two represented themselves as husband and wife in public.

In March 2007, the decedent fell from a platform while engaged in the performance of his duties as an employee of Ultralum Enterprises.  The fall arose out of and in the course of employment.

Bobbie Kehoe filed a dependency claim petition asserting that she was the decedent’s surviving spouse.  She argued that during a two-week visit to Texas in 2004, she and decedent established the elements of a common law marriage under Texas law by (1) agreeing that they were then married; and (2) cohabitating as husband and wife; and (3) representing to others that they were husband and wife. A family relative testified that the two did indeed represent themselves as husband and wife while in Texas.

The Judge of Compensation denied the claim because New Jersey does not recognize common law marriages.  The Court said, “Here, it is undisputed that petitioner and the decedent were never formally married under New Jersey law.  On the facts presented, petitioner is not entitled to benefits under N.J.S.A. 34:15-13(f).  Petitioner’s argument based on the recognition of common law marriages by the State of Texas lacks sufficient merit to warrant discussion in a written opinion.”

This case can be found at Kehoe v. Ultralum Enterprises, Inc., A-4531-12T4 (App. Div. March 18, 2014).

Among the hardest cases for employers to contend with are those where the claimant already has an advanced degenerative or arthritic condition and then has an injury.  That was the situation when Veronica Graham, a 55-year-old Certified Nursing Assistant, fell on a wet floor at work on June 25, 2011.  She landed on her left hip, buttocks, and back and was diagnosed with a contusion of the left hip.

Initially Graham returned to work with no pain, but within a few days she began to have hip pain.  She was referred to a physician who recommended three physical therapy sessions.  She was placed on light duty while in physical therapy and then returned to work full duty on her discharge date of July 18, 2011.

Graham said that she did not experience pain after the accident but did start having pain following physical therapy for her left hip.  She had to stop working in October due to her pain.

In November 2011, Graham met with Dr. Gregory S. Maslow, an orthopedic surgeon, who prescribed Percocet for pain management and took x-rays, which showed moderately severe degenerative arthritis of the left hip.  The x-rays showed petitioner lacked cartilage between her hip bone and hip socket.  Dr. Maslow gave an opinion that the work accident caused a previously asymptomatic condition to become symptomatic and thereby accelerated the time frame for a need for hip replacement surgery.

The respondent’s expert, Dr. Hausmann, an orthopedic surgeon, opined that petitioner had “very severe arthritis” and said that this condition predated the work accident.  In his opinion, petitioner would have needed total hip replacement surgery regardless of the fall at work.  He said that there was a complete loss of the joint space and large spurs around the hip joint.

The Judge of Compensation accepted the testimony of Dr. Maslow over Dr. Hausmann and found for the petitioner.  The employer appealed and argued that there was insufficient evidence to support the finding in favor of petitioner.  For one thing, the employer argued that petitioner had showed a lack of candor when she failed to disclose an earlier automobile accident and therefore could not be found to be credible in her entire testimony.  There is a doctrine in the law derived from the Latin phrase, “falsus in unum, falsus in omnibus.”  It means false in one thing, false in everything. The Judge of Compensation disagreed with this philosophy and found that the petitioner’s lack of candor was inconsequential since the prior car accident did not pertain to any hip problem.

The Appellate Division affirmed the decision in favor of petitioner.  The court said, “With respect to petitioner’s claim of exacerbation and acceleration of degenerative arthritis, the record amply supports the judge’s finding that petitioner’s accident caused her previously asymptomatic hip to become symptomatic and increasingly painful.” The court cited previous case law to the effect that “Employers take their employees as they find them, ‘with all of the pre-existing disease and infirmity that may exist.’ “Verge v. Cnty. Of Morris, 272 N.J. Super. 118, 125 (App. Div. 1994).

This case involves a fairly common situation for employers.  The case involved mostly the concept of “acceleration. ”  There was no dispute that petitioner would have needed a hip replacement at some point in time, so the issue in the case was whether the timing of that surgery changed because of the work accident.  The court was of the opinion that if the accident hastened the need for surgery, even if surgery would have been inevitable eventually, then the employer must pay for the surgery.  In handling similar cases, employers need to focus on prior medical discovery because this case turned on the fact that respondent was never able to prove petitioner had prior hip complaints.  The case also shows that proof that a claimant is not candid in testimony will not necessarily doom the petitioner’s case if the judge feels the lack of candor was not material to the claim.

This case may be found at Graham v. Silver Care Nursing Center, A-2923-12T2 (App. Div. March 7, 2014).

Many clients ask what the difference is between the defense of independent contractor and casual employment.  The truth is that the defenses are very similar, and one important case, Berkeyheiser v. Mollie S. Woolf, 71 N.J. Super. 171, (App.Div. 1961), illustrates this point.

The case involved a man who worked full time for St. Regis Paper Company as a pipefitter five days a week, seven and one half hours per day.  From time to time, he performed some odd jobs for Mollie S. Woolf, who owned several buildings. He repaired some doorbells in buildings in 1956.  In September 1957, he repaired a damaged ceiling in a building.  He also installed some shields over doorbells to prevent children from unnecessarily pushing on them.  In November 1957, he repaired apartment windows that had been damaged and installed two window sashes in an apartment.  In February 1958 he repaired some outlets and worked all day.

On July 12, 1958, Mr. Berkeyheiser borrowed a drill from his son and started to install an electric outlet for a refrigerator in the home of Mollie S. Woolf.  The drill struck a live wire and caused injury to his right eye and facial scars.  He filed a workers’ compensation claim.

The facts showed that Mr. Berkeyheiser did not hold himself out to the general public as a repair person.  He had only done some repair work for one other person besides respondent.  The respondent would provide the equipment, of if she did not have the equipment, Berkeyheiser would purchase it and bill respondent.  He was paid by the hour and there was no withholding from his pay.

The Judge of Compensation found petitioner to be an independent contractor, and the County Court affirmed.  Berkeyheiser appealed and argued that the work he performed was essential to the maintenance and operation of respondent’s business, the so-called relative nature of the work test.

The Court said, “Overlapping between casual employees and independent contractors is common, and it is not unusual that a petitioner falls into either or both unprotected classes.”  The Appellate Division held that there a number of factors arguing against employment here.  Petitioner had a regular and permanent full-time job at a substantial salary.  He had no expectation of regular and steady employment by the respondent and only worked when the need arose.  He did not perform repairs on a scheduled basis but would choose the times when he would appear to make repairs.

We conclude that the character of the work was such as to preclude petitioner from the right to compensation under the Workers’ Compensation Act.  We have accepted all his factual contentions as true, but they do not establish the essential existence of an employer-employee relationship.  Whether he was more a casual employee or an independent contractor need not be decided.  There is no merit to petitioner’s claim that would justify an award, either within the letter or spirit of this remedial legislation.

This case is useful for practitioners in dealing with these two very close cousins:  the independent contractor defense and the casual employee defense.

Remi Beausejour had problems with his lower back dating back to 2006, when he injured his back at work.  He had pain in his back, and down through his right leg.  An MRI showed degenerative disc disease and a disc herniation at L3-4 and L4-5 levels.  He also experienced radiculopathy at the time, and was discharged from treatment four months post injury.

Beausejour suffered a second low-back injury in January 2008, and another on September 17, 2009.  Both injuries required treatment to the lower back.  After the September 2009 incident, he was unable to sit due to the extreme pain.

An MRI was performed on September 28, 2009, showing a small right paracentral annular tear and disc herniation at L1-2, with bulging discs at L2-3 and L3-4, and a disc herniation at L4-5 with lumbar radiculopathy.  He required epidural injections at this time, and was out of work for three weeks. The last injection occurred in November 2009.

The accident which was the subject of this case occurred on December 2, 2009, when Beausejour fell 18 feet from a ladder and fractured his left ankle. Beausejour had an EMG in 2010, which revelaed acute L5-S1 radiculopathy.  He contended that this fall at work aggravated his preexisting lower back condition.  A new MRI was ordered on January 17, 2011, which ultimately showed much the same findings as the 2009 MRI.

At trial two orthopedic experts testified.  Dr. Lance Markbreiter compared the 2009 MRI with the 2011 MRI and said that there was no significant change and no traumatic findings.  He felt that the degenerative changes on the MRI were what one would have expected given the two-year gap in dates of the studies. Dr. Markbreiter felt that there would have been much more pathology on the 2011 MRI if the fall from the ladder had actually produced a back injury.  He felt that petitioner’s lower back complaints would have been the same regardless of the fall.

Dr. Cary Skolnick testified for petitioner.  He said that the fall in 2009 aggravated and exacerbated petitioner’s preexisting lumbar degenerative disc disease.

The Honorable Watson Berich, Judge of Compensation, held that Dr. Markbreiter’s testimony was more persuasive, in part because he had been petitioner’s treating doctor after the 2009 fall.  In contrast, Dr. Skolnick had only seen petitioner on one occasion for an IME.  Judge Berich found that there was no demonstrable, objective medical evidence of any aggravation of the petitioner’s preexisting condition, and therefore dismissed the claim petition.

Petitioner appealed to the Appellate Division, which noted that a petitioner in an aggravation case must provide proof of both legal and medical causation.  “Medical causation means the injury is a physical or emotional consequence of work exposure” and “that the disability was actually caused by the work-related event.”  (citations omitted).  The court added that generally an opinion of a treating doctor is entitled to greater weight than that of an evaluating doctor on causation.  For these reasons the Appellate Division affirmed the dismissal of petitioner’s claim petition for partial permanent disability.

This case provides guidance on the term “aggravation.”  The Judge of Compensation clearly appreciated that this term means more than just “more pain.”  Since the MRI findings were exactly the same after the fall as before the fall, it was very difficult for petitioner to prove aggravation.  The case also illustrates the advantage given generally to treating doctors over IME doctors.

This case can be found at Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4, (App. Div. January 29, 2014).

John Machiaverna worked for the City of Newark as a firefighter since 1988.  He filed a workers’ compensation claim for his left knee in 2008, alleging that repeated work stressors over many years caused extensive knee problems and a need for knee replacement surgery in May 2007.  He contended that his knee problems were due to regular climbing of extension ladders and stairs, crawling through buildings and carrying people out of buildings.  The City denied the claim and put petitioner to his proofs.

During the testimony at trial, petitioner was asked if he had ever suffered any injuries in his work career.  He testified that he had no previous injuries to his knee or hip.  That testimony fell apart on further questioning.  He then admitted that he injured himself in 2002 when a piece of sheetrock gave way during a fire, causing injury to his left leg. He next admitted on cross examination that he had arthroscopic surgery on his left knee in April 2002.

The petitioner was seen by four IME doctors, two for each side.  The Court noted that he “lied to all four doctors who examined him because he failed to disclose his prior left knee injuries.”  The Judge also commented that he initially failed to admit to having prior knee surgery in April 2002 and failed to admit two incidents in 2001.  The IME doctors testified in court, and their testimony was critical in proving fraud.

Dr. Canario for respondent said that petitioner had not told him about a previous surgery to his left knee in 2002.  In the opinion of Dr. Canario, petitioner’s size and weight were major factors in his knee problems.  Petitioner was six foot five inches tall and weighed 345 pounds.  Dr. Wong for petitioner stated in testimony that petitioner had not told her about his 2002 knee surgery.  Dr. Kulkarni for petitioner also said that petitioner had not told him about three prior knee injuries. 

The Honorable Theresa Yang, Judge of Compensation, found that petitioner was not a credible witness.  She held that in concealing his prior knee injuries and surgery, petitioner committed fraud as defined by the New Jersey Fraud Act, N.J.S.A. 34:15-57.4.  She therefore dismissed the case.

On appeal, petitioner argued that his due process rights had been violated because he was “deprived of the opportunity to defend himself against the court’s allegations of fraud.”  The Appellate Division categorically rejected that position.  “There was sufficient evidence to support Judge Yang’s credibility assessments and her determination that a violation of N.J.S.A. 34:15-57.4 (c) (1) had occurred.”  The Appellate Division held that petitioner failed to prove an occupational claim. 

This case is important because it shows that Judges of Compensation are following the statutory law under the New Jersey Fraud Act.  It is not necessary for an employer to prove a claimant was working while on temporary disability benefits to establish fraud.  That is just one issue in a fraud case.  If a claimant deliberately misrepresents or conceals prior medical information that is relevant to the claim, that in itself constitutes fraud.  The case also shows how important it is for defense counsel to get prior records, whether attacking credibility or attempting to prove fraud.

The case can be found at Machiaverna v. City of Newark, A-5848-11T3, (App. Div. July 18, 2013). 

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Is there a statute of limitations in an occupational disease claim?  While some practitioners believe only traumatic claims have a statute of limitations, the case law is clear that there is a statute of limitations in occupational disease claims as outlined in Earl v. Johnson & Johnson, 158 N.J. 155 (1991).  Occupational disease claims can be defeated if not filed timely. The recent case of Lattoz v. New Jersey Turnpike Authority, A-4335-11T2 (App.Div. June 5, 2013) underscores this point.

John Lattoz began working with the Authority in 1992 as a landscaper and later as a toll technician.  Around 2000 he began to have serious problems with his knees.  He had problems walking and standing.  He found that his knee pain increased during the four years as a toll technician.

Q.  So you knew you had pain in your knee in 2000; is that correct?

A. Yes.

Q. Did you think it was as a result of your work-related activity?

A. In both knees.  In both knees.

Q. Did you think it was as a result of your work-related activities?

A. Yes.

In 2004 Lattoz commenced working as a communication technician.  He would have to kneel for approximately two hours per day.  He had pain in his knees any time he would walk or stand.  He saw an orthopedic surgeon, Dr. Hurley, on May 23, 2005 for his knees.  The doctor noted that petitioner said he had pain with any type of prolonged standing or walking.  His problems started while playing football in high school, and in 1978 he had knee surgery to repair a torn meniscus.  Dr. Hurley diagnosed petitioner in 2005 with bilateral osteoarthritis of both knees.  He thought petitioner was too young for a knee replacement procedure. Petitioner was 46 years old at the time of the exam, and Dr. Hurley recommended waiting until age 50.

In April 2008, petitioner saw another orthopedic surgeon, Dr. Goldman, because his knees were getting worse.  Between 2005 and 2008, petitioner did not see any other physicians for his knees.  By 2008 he could not wait for his daily work shift to end on account of severe pain.  Dr. Goldman took x-rays and recommended bilateral total knee replacements. That surgery was performed on July 23, 2008, and the Authority paid for the surgery.  Petitioner returned to work in November 2008 and resumed full duty.  He filed this claim petition on November 11, 2008, asserting that occupational exposure from 1992 to 2008 and continuing caused his knee problems.

Petitioner produced Dr. Arthur Tiger, an orthopedic surgeon, who testified that petitioner’s employment caused his need for bilateral knee replacements.  Dr. Tiger denied that the prior knee surgery was the primary cause of knee pain.  He did admit that petitioner’s prior employment installing carpet and engaging in tree cutting services were factors in the development of knee problems.

Dr. Carl Mercurio, a surgeon, testified for respondent and said that primary risk factors were petitioner’s obesity and prior knee injury.  Petitioner was six foot six inches tall weighing between 280 and 300 pounds.  He characterized the work exposures as those of everyday life.

The Judge of Compensation dismissed the case on the statute of limitations under N.J.S.A. 34:15-34.  He found that petitioner knew his condition more than two years before the filing date and thought it was work related.  Petitioner countered that he lacked statutory knowledge until his surgery in 2008.  The Appellate Division affirmed the dismissal of the case, noting that the statute requires the claimant to file within two years after the date the worker knew the nature of the condition and its relationship to work.  The Court said that knowledge of the nature of the disability means knowing enough about the condition to realize its extent and seriousness.

The records thus show that in May 2005, petitioner had the requisite amount of ‘knowledge of the nature of his disability’ that was ‘sufficient to bring home substantial realization of its extent and seriousness. . . Accordingly, the decision by the Judge of Compensation that petitioner had until May 23, 2007 to file his workers’ compensation claim pursuant to N.J.S.A. 34;15-34 was ‘supported by substantial credible evidence in the record’ and was not ‘arbitrary, capricious or unreasonable.’” (citations omitted).

It is important to understand that the statute does not say that the petitioner must be told by a doctor that the condition is work related.  The key in this case is that in 2005 petitioner himself thought his condition was work related, and he knew what that condition was from Dr. Hurley.  He did not file until more than two years from that date, thereby dooming his claim.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.