Few New Jersey workers’ compensation cases turn on the issue of notice under N.J.S.A. 34:15-17 simply because the New Jersey statute allows up to 90 days in most instances to report a traumatic injury. The case of Ader v. Lebanon Township, A-0383-11T2 (App.Div.March 11, 2013) focused on this section of the law and whether there is a “knowledge requirement” as part of the statute.
Kenneth Ader worked as a volunteer emergency medical technician for the Township of Lebanon, serving as captain of the rescue squad for several years. On November 18, 2008, Ader responded to a call involving a tow-truck.. He climbed onto the back of the tow-truck to investigate the accident. He then squatted and jumped off the truck, feeling some pain in his low back, an area of the body where he previously had surgery 10 years before.
Two weeks later Ader felt pain in his right hip, and shortly thereafter he felt pain in his left hip. He saw his primary care doctor on December 16, 2008. At this visit he did not mention the incident jumping off the truck. However, on the second visit in January 2009, he did tell the doctor about the pain he felt jumping off the tow truck. His doctor diagnosed arthritis and began treating him.
On October 2, 2009, almost a year later, his primary care doctor referred petitioner to a surgeon, Dr. Patrick Collalto, because the pain was so bad it was interfering with petitioner’s job as a school bus driver. The surgeon diagnosed avascular necrosis, a condition which causes bones to collapse and die. He recommended bilateral hip replacement surgery. Dr. Collalto’s history included the following: “Patient (indicated) that he has had a hip pain since December 2008, and that the pain began shortly after he jumped off a ‘wrecker.’ This injury occurred on November 18, 2008, while he was working.” Dr. Collalto performed hip surgery on January 11, 2010 and on July 6, 2010.
Not until February 2010, some 15 months after the work incident, did petitioner report the injury to Lebanon Township. The Township denied the claim for lack of timely notice. Section 17 requires that an employee must notify the employer of a work injury within 90 days or be barred from compensation, unless the employer already knows about the injury. Petitioner argued that this section of the statute should be interpreted as having a “knowledge requirement.” He said he did not really know his condition was work related until his surgeon told him in early 2010.
The Judge of Compensation ruled against petitioner and dismissed his case. The Appellate Division affirmed and stated, “Here, the record supports the findings of the Judge of Compensation that a reasonable person facing appellant’s circumstances would have been aware that he sustained a work-related injury on November 18, 2008. After all, it cannot be overlooked that appellant had been with the squad for twenty-nine years, and had held the high supervisory rank of captain for eight years prior to the date of the incident.”
This decision shows that the notice provision in the statute remains a practical defense. The Court did not adopt a “knowledge” interpretation of the statute which would delay the notice period until a physician specifically informed the injured worker that his condition was work related.
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.