Bender v. Twnp. of North Bergen, DOCKET NO. A-4564-18T3 (Appellate Division, Decided Dec. 24, 2020)

The Appellate Division affirms dismissal of petitioner’s occupational exposure claims as being time-barred based on an assessment of the credibility of petitioner’s own testimony and petitioner’s reliance on the “net opinion” of his medical expert.

This Appellate Division decision addresses proof issues as to the statue of limitations in the context of occupational exposure claims. Under N.J.S.A. 34:15-34, an injured worker must file a petition for compensable occupational exposure within two years of the date on which he discovers the nature of the disability and its relationship to his employment. Here, the Judge of Compensation’s factual findings and credibility determinations led to a conclusion that the injured worker’s claims for occupational exposure were time-barred as he failed to comply with the appropriate statute of limitations.

The petitioner had been employed as a police officer with the respondent from 1979 until his retirement in 2004. On October 4, 2007, he filed claims with the Division of Workers’ Compensation, alleging occupational orthopedic and psychiatric disability. At trial, the petitioner testified about his exposure to various gruesome assignments and trauma during his years as a police officer. He further testified that in 2002, he began experiencing negative psychiatric issues as a result of this exposure. He alleged that the stress led him to retire. Despite suffering from what he perceived to be an occupationally-related psychological condition, he did not report his condition nor file a claim until five years later.

As to his orthopedic injuries, the petitioner testified that he did not realize until 2007 that his orthopedic injuries, which necessitated surgery to his neck, back, right knee and left shoulder, resulted from “numerous falls, motor vehicle accidents, lifting stretchers” and fights during his tenure as a police officer. Rather, he contended that these injuries were progressive and did not manifest themselves until less than two years before filing his claim petition in 2007.

At the conclusion of trial, the Judge of Compensation found that the petitioner’s claims were time barred as they had not been filed within two years of the petitioner having had knowledge of the nature of his orthopedic and psychiatric disabilities and their relation to his employment. The judge dismissed the claims, and the petitioner appealed.

The Appellate Division affirmed the Judge of Compensation’s decision that the petition claiming psychiatric occupational disease was not filed within two years of the date on which the petitioner knew the nature of his disability and its relation to his employment. However, the Appellate Division was unable to determine from a reading of the decision whether, or on what basis, the Judge of Compensation decided the compensability of the occupational orthopedic claim. Accordingly, the Appellate Division remanded as to the dismissal of the orthopedic claim, instructing the judge to make a finding as to whether the petitioner filed his claim regarding his orthopedic injuries within the appropriate statute of limitations.

In setting forth the reasons why he concluded the petitioner had not timely filed his orthopedic claim petition, the Judge of Compensation cited the credibility of the petitioner’s testimony and the opinion of his medical expert, Dr. Floyd Krengel. According to the judge, Dr. Krengel’s opinion that the petitioner’s orthopedic injuries were causally related to occupational exposure was a “net opinion” with no support in factual evidence. See Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540 (App. Div. 1996); see also Townsend v. Pierre, 221 N.J. 36, 54 (2015). Furthermore, the judge concluded that, had the petitioner’s orthopedic disability been as severe as he testified and were it, in fact, related to his occupational injuries, then “one would clearly expect some manifestation arising during the work exposure or within two years of the work exposure.” Accordingly, the judge again dismissed the petitioner’s orthopedic claim as time barred. The petitioner appealed a second time.

In affirming the dismissal of the petitioner’s occupational orthopedic claim, the Appellate Division concluded that the Judge of Compensation’s findings were wholly consistent with the trial record. As the Appellate Division reasoned:

[Dr. Kengel’s] report was based on the doctor’s review of . . . a 2012 cervical MRI stud[y] and a single physical examination in June 2013 only. The examination did not include petitioner’s shoulder or knee, and offered no explanation for the doctor’s conclusion that petitioner’s back injuries—both cervical and lumbar—were causally related to “occupational exposure.” The doctor’s failure to relate the injuries to specific incidents and to give the “why[s] and wherefore[s]” of his mere conclusion, rendered it a net opinion.

With regard to the credibility of the petitioner’s testimony, the Appellate Division concluded:

Here, petitioner challenges the judge’s fact-finding in the first instance; namely, whether petitioner was aware he had a compensable claim and yet did not file a claim petition within the two-year statute of limitations. Those findings required credibility determinations[.] Despite the urging of petitioner on this score, we conclude that our independent review of the judge’s factual findings and credibility determinations based on the trial proofs is unwarranted. Even were we to conclude otherwise . . . the judge’s conclusions are . . . entirely consistent with the trial record.

Given its review of the record and in consideration of its standard of review, the Appellate Division indicated that it could discern no error in the Judge of Compensation’s holding that the petitioner failed to file a timely claim related to his occupational disability.

As this decision demonstrates, unlike an accident, the precise onset of an occupational disease may be difficult to ascertain. As a result, N.J.S.A. 34:15-34 and the courts have recognized that the period for filing an occupational claim does not run until two years after the date the worker knows the nature of his occupational disability and its relationship to his employment. For statute of limitation purposes, knowledge of the nature of the disability connotes a knowledge of the most notable characteristics of the disease sufficient to give rise to an understanding of its extent and seriousness. An employer asserting a statute of limitations defense to an occupational exposure claim must establish that the injured worker had knowledge of the nature of the disability, its relation to his employment and the compensability of the injuries alleged. As in this case, these issues will require factual findings and credibility determinations on the part of the court.


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