No requirement that a judge of compensation consider expert testimony as to causation in an occupational exposure claim before granting a motion to dismiss based on statute of limitations.

The petitioner was a teacher employed by the respondent from 1971 through 1993. On February 24, 2004, the petitioner filed a claim with the Division of Workers' Compensation alleging pulmonary and related injuries as a result of exposure to asbestos while in the respondent's employ. The petitioner testified as to an asbestos remediation program that took place at the high school where he taught in the early 1990s. The program, which was carried out during school hours, lasted about a year and included replacement of all ceiling tiles and removal of asbestos from piping in the basement. On cross examination, the petitioner acknowledged that, from early in his teaching career, he was aware that "asbestos had harmful effects, including lung disease," and that he was concerned for his own health, as well as that of the students and other teachers.

In March 2000, the petitioner was diagnosed with a metastatic brain tumor and underwent surgery to remove the tumor. Surgery was followed by a regimen of radiation and chemotherapy. Approximately three months later, a cancerous upper lobe of the petitioner's lung was removed and further radiation and chemotherapy followed. In or about 2001, the cancer returned to the petitioner's brain, and he underwent additional radiation therapy. In 2003, his adrenal gland was removed when it was discovered that his cancer had spread. Additional radiation and chemotherapy followed until sometime in 2005. At the time of his testimony, the petitioner's condition continued to require periodic MRI studies.

At the conclusion of the petitioner's testimony, the respondent moved to dismiss the petitioner's claim as time-barred. The judge of compensation ordered the parties to submit briefs as to the respondent's motion and heard oral argument shortly thereafter. In the judge's decision, she concluded that "[p]etitioner admitted knowledge of potential harmful effects of asbestos during the remediation project" and "he had permanent loss of function in 2000 and 2001." Accordingly, the judge found that the petitioner's claim filed on February 23, 2004, was time-barred as it had not been filed within the two-year statute of limitations as provided by the Workers' Compensation Act. The petitioner appealed, contending that medical knowledge as to the cause of his cancer could not be imputed to him in the absence of expert testimony as to the issue of causation.

In affirming the judge of compensation's holding, the Appellate Division examined N.J.S.A. 34:15-34 which provides:

[W]here a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for occupational disease . . . shall be barred unless a petition is filed . . . within two years after the date on which the claimant first knew the nature of the disability and its relation to the employment.

The Appellate Division found that the petitioner had knowledge of the potential harmful effects of asbestos from early in his career and that he knew he had suffered a permanent loss of function in 2000, when he first had a cancerous tumor removed from his brain, or shortly thereafter in 2001, when he had a cancerous upper lobe removed from his lung. This knowledge, the Appellate Division concluded, provided ample basis for the judge of compensation's dismissal of the petitioner's claim.

As to the petitioner's argument that medical knowledge as to the cause of his cancer could not be imputed to him in the absence of expert testimony to establish causation, the Appellate Division found same unconvincing. Rather, the court concluded that "there is no requirement that the [Judge of Compensation] consider expert testimony before granting a motion to dismiss based on the statue of limitations." Rather, knowledge will be imputed to the petitioner if he:

[W]as aware of facts that would alert a reasonable person to the possibility of an actionable claim. [O]nly some reasonable medical support, not medical confirmation is required.

Case Law Alert - 2nd Qtr 2012