The answer to this question, at least in New Jersey, is a resounding yes, if you have the right facts.  In Russo v. Hoboken Board of Education, A-1861-10T4 (App. Div. November 29, 2011), the petitioner filed a claim petition on February 24, 2004.  He alleged that pulmonary injuries caused by asbestos exposure principally between 1990 and June 30, 1993 caused his metastatic brain tumor and lung tumor which were diagnosed in 2000 and 2001.  He filed his claim petition on February 23, 2004.

The petitioner taught at various schools in the Board of Education from 1971 to 1993.  He took a leave of absence in 1993 after winning the Hoboken Mayoral Election that year.  He testified that there was an asbestos remediation project in the early 1990s.  That project required the replacement of all ceiling tiles in the building and the removal of all asbestos dust and was carried out during school hours.  He also testified that he thought he was exposed to asbestos while teaching at the Connors School while eating lunch in the basement with other teachers. 

On cross examination the petitioner admitted that he had long been aware asbestos had harmful effects, including lung disease.  He recalled in the 1990s a general ‘buzz going around the building” regarding workers who were wearing “spaceman outfits” to conduct remediation.  He went so far as to attend public meetings and object to the project.  He said that even back in the early 1990s he thought students and teachers were probably being harmed by the asbestos exposure.

The petitioner had been a cigarette smoker since the early 1960s.  When he was diagnosed with a brain tumor in 2000, he underwent radiation and chemotherapy.  About three months after the brain surgery, a cancerous upper lobe in his lung was removed and further radiation and chemotherapy were required.  He was diagnosed with adenocarcinoma with the primary tumor site being in his lung. 

In 2001 or 2002, the cancer returned to his brain and he underwent another surgical procedure.  He required further surgical procedures in the following years. 

 The petitioner testified that his oncologists likely inquired about his employment history and potential exposure to harmful materials before the multiple surgeries and during these treatments. However, he maintained that the doctors never specifically told him that his cancers were related to work. Respondent made a motion to dismiss the case at the end of petitioners’ testimony, arguing the petitioner knew his condition and knew that it was due to work exposures two years before he filed.

The judge of compensation considered that petitioner was not diagnosed with cancer until 2000.  That was clearly when he knew what his medical condition was.  The judge noted that petitioner was aware of the harmful effects of asbestos exposure as far back as the 1970s.  She commented that petitioner was a “well education gentleman, with greater than a Master’s degree.”  She further noted that petitioner was aware of the remediation projects in the 1980s and 1990s and knew he had loss of bodily function from his cancer in 2000 and 2001 but did not file within two years of this knowledge.  Therefore, the judge dismissed petitioner’s claim under N.J.S.A. 34:15-34. 

The Appellate Division reviewed the evidence at trial and affirmed that petitioner knew his medical condition when he was diagnosed with a cancerous tumor in his brain and then a cancerous tumor in his lung.  It rejected petitioner’s argument that he did not know his condition was due to work until much later.  He argued that respondent neither admitted nor denied that he was exposed to asbestos in its answer to his claim.  The Appellate Division noted that only “some reasonable medical support” is required but not medical confirmation.  Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000).  The court said that it was only necessary that petitioner was aware of facts that would alert a reasonable person to the possibility of a claim. 

The decisive factor in respondent’s favor was that petitioner admitted he was aware that asbestos could cause lung disease and other medical problems as far back as the 1970s.  He had voiced complaints in the early 1990s at board meetings.  The Appellate Division held that in this particular case it was not critical that the treating physicians did not specifically tell petitioner that his cancer was related to the exposure. 

Another key aspect of this decision, if not the most important aspect, is that the judge of compensation was affirmed in her holding that there is no requirement that the judge must hear expert testimony before ruling on a motion to dismiss based on the statute of limitations.  Importantly, the Board of Education never produced experts, and neither did petitioner.  The court nonetheless dismissed the case on the statute of limitations.  This ruling makes this case one that practitioners should study as it may be the only such Appellate Division ruling on the issue of whether expert testimony is needed.  For employers who deal with occupational disease claims, this case and the Huntoon case are powerful reminders that the statute of limitations in occupational claims is alive and well.

In New Jersey employment is favored heavily over independent contractor status. Proof of this rule is Johantgen v. Brandywine Senior Care Center, A-4883-09T1 (App. Div. October 31, 2011).

Diane Johantgen provided hairstyling and grooming services once per week to residents of a long-term nursing home. She fell from a chair and fractured her wrist while hanging Christmas decorations in the area where she did her hairstyling work and filed a workers’ compensation claim against Brandywine Senior Care Center. (more…)