The statute of limitations defense in the context of occupational exposure claims.

On November 11, 2008, the petitioner filed a workers’ compensation claim against his employer, alleging an injury to both knees as a result of exposure to repetitive motion during the course of his employment from December 1992 to November 11, 2008.

The petitioner testified that he began working for the respondent in 1992 as a landscaper and that he had no problems with his knees at that time. In or about 2000, the petitioner began work as a toll technician with the respondent, which is when he began reporting complaints of pain and discomfort of the knees which caused difficulty in walking and standing. The petitioner further testified that the pain in his knees progressively worsened in the years he worked as a toll technician. In 2004, the petitioner began working with the respondent as a communication technician, which required periods of extended kneeling, causing a worsening of his complaints. Despite neither seeking medical treatment nor reporting any complaints to the respondent, the petitioner did testify that he attributed the pain in his knees to his employment as early as 2000.

On May 23, 2005, the petitioner consulted an orthopedist, John A. Hurley, complaining of pain in both knees dating back a number of years. Dr. Hurley diagnosed the petitioner with osteoarthritis of both knees. Although surgical and non-surgical interventions were discussed, it was decided that, because of his relatively young age, the petitioner would undergo an aggressive course of physical therapy rather than knee replacement surgery. However, Dr. Hurley did indicate that the petitioner would likely require knee replacement surgery at some point in the future. In April of 2008, the petitioner presented to Dr. Robert Golman, an orthopedist, with reported complaints of constant bilateral knee pain. A series of x-rays demonstrated the petitioner’s candidacy for surgery. On July 23, 2008, the petitioner underwent bilateral knee replacement.

At the conclusion of trial, the respondent moved for dismissal based on N.J.S.A. 34:15-34, which provides in relevant part:

[W]here a claimant knew the nature of the disability and its relation to the employment, all claims for compensation or compensable 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 Judge of Compensation dismissed the petitioner’s claim with prejudice on statute of limitations grounds. The judge explained:

[H]ere, Petitioner concedes that he believed that his knee pains were caused by the job as early as the year 2000. [O]n May 23, 2005, in the course of his examination with Dr. Hurley . . . [Petitioner] was told that his knees were sufficiently damaged to require knee replacement, but that his age combined with the expected utility of the prosthetics made delay advisable. It is inescapable that at that point the Petitioner knew that he was suffering from a serious disability which, by his own admission, he knew to be related to his employment. N.J.S.A. 34:15-34 bars his claim unless he filed a claim petition before May 23, 2007. Since he failed to file a petition until November 11, 2008, his claim is barred[.]

On appeal, the petitioner argued that, although he and Dr. Hurley discussed the benefits of knee replacement in 2005, Dr. Hurley did not impress upon him the necessity or inevitability of surgery. As such, the petitioner claimed that he lacked the requisite knowledge of the severity of his injury which, according to the petitioner, did not fully manifest itself until July 23, 2008, the date of his surgery.

In affirming the Judge of Compensation’s dismissal, the Appellate Division found that the record was clear that, when the petitioner consulted with Dr. Hurley on May 23, 2005, he was made aware of the severity of his diagnosis and the inevitability of knee replacement surgery. “Following Dr. Hurley’s diagnosis,” the Appellate Division concluded, “Petitioner knew he suffered from osteoarthritis, needed bilateral knee replacement, [and] believed that his knee pain was the result of his employment with [Respondent]. Accordingly, Petitioner had the requisite amount of knowledge of the nature of his disability and its relation to his employment on May 23, 2005, sufficient to begin the running of the statute of limitations.”

Case Law Alerts, 4th Quarter 2013