What are the time limits on filing an occupational?

In New Jersey, occupational disease claims must be filed "within two years after the date the claimant first had knowledge" of the nature of his disability and its relation to his employment. Knowledge means recognition of the most notable characteristics of the disease sufficient to bring home a substantial realization of its extent and seriousness. Knowledge of the "nature" of a disability includes knowledge that the injury is compensable. In Earl v. Johnson & Johnson, 158 N.J. 155 (1999)., the Court found that although petitioner's respiratory problems began in 1989, the petitioner was not aware that the condition had deteriorated into a permanent disability until undergoing pulmonary function tests in 1993 and it is from that time that the statute of limitations runs.

When will an out-of-time defense be sucessful?

The New Jersey Appellate Division just upheld the dismissal of a high school teacher's lung cancer claim despite the fact that the teacher was able to demonstrate asbestos exposure over a twenty year period. The workers' compensation judge focused on the petitioner's knowledge of knowledge of exposure and cognizance that his lung cancer condition might have been related to the asbestos exposures in his workplace

The petitioner argued that "knowledge" of causation could not be imputed to him. However, the Respondent was able to demonstrate that the claimanthad "better than a master's degree," an intimate familiarity with the school environment including the ongoing remediation programs he personally observed, and the fact that the claimant actually testified about the asbestos exposure hazards in the school in public hearings that took place before the school board.

Given this backdrop of obvious knowledge regarding the workplace exposure to asbestos, the Workers' Compensation Law Judge ruled that waiting until 2004 to file his workers' compensation claim was beyond the statute of limitations, because the claimant was diagnosed with cancer in 2000, and the statute started running at that time. The petitioner did not file his claim within the two year limitation of the Act, and his case was dismissed. The Appellate Court upheld the dismissal.

Practical tips.

In the asbestos case, the employer was well armed with the petitioner's own prior testmony, given directly to the employer (remeber: the claimant was a teacher and the respondent was the school board), in which he publicly declared his knowlege of the hazardous condition in the workpace. IN most cases, public declaratiosn made by a pettiioner years before he or she files an occupational claim, publicaly acknoweleging their understanding of a specific hazard in the workplace, will not be available. But another case, also recently decided, demonstrates that good claim investigation can uncover similar evidence that a claimant knew of the alleged occupational injury long before the filing of their formal claim.

In Graf v. Mtichell Park Flooring, decided December 19, 2011, the claimant brought an occupational claim against a sucession of employers, alleging that use of a floor sander at work created a permanent residual disability. He recieved treatment with a chiropractor in 1999, and the record of that care was obtained by the employer. The Judge of Compensation relied on that record as demonstrating that the claimant "knew the nature and extent of his claimed disability" at the time of that treatment (in 1999). The Appellate Division upheld dismissing his workers' compensation claim, which wasn't filed until 2004, as being filed beyond the two-year statute of limitations.

Cases: Russo v. Hoboken Board of Education, A-1861-10T4 (N.J. App. Div., Decided November 29, 2011) and Graf v. Mtichell Park Flooring, A-1775-10T1 (N.J. App. Div., decided December 19, 2011).

Suzanne Huntoon began working as a clerk-typist for a police department in 1994. In 1998 she began experiencing tingling and numbness in her right hand. In July of 1998 her primary care physician told her that the condition was "probably work related because of the typing her job required."

In 2001 Huntoon saw a new family doctor, still complaining of pain and numbness in her right hand. The new doctor diagnosed her as suffering from "right carpal tunnel syndrome" and prescribed a wrist brace.

In 2003 Hunoon returned to her doctor, complaining about pain an dumbness in the right hand that would not go away. Once again, she was diagnosed with "carpal tunnel syndrome right keyboard use." Huntoon was referred to a hand surgeon, although she did not make an appointment or follow up on the referral.

On two more occasions Huntoon sought care for her right wrist - again in 2003 and in 2004. She underwent an EMG/Nerve Conduction Velocity test which confirmed a 'severe degree' of carpal tunnel syndrome in the right hand.

In 2007 Huntoon filed a claim petition alleging that she sustained injuries arising from an occupational exposure ("repetitive motion"). The employer filed an answering pleading denying the compensability of the hand injuries.

Trial began in March 2009. During her testimony, the claimant recounted her treatment course (essentially as described above). After trial, the judge of compensation dismissed Huntoon's case - citing the law that requires an employee to file claims for work-related injuries within two years of learning of the condition's relationship to employment. This 'two year' time limit for filing claims is referred to as the 'Statute of Limitations.'

N.J.S.A. 34:15-34 requires that “where a claimant knew the nature of the disability and its relation to the employment” all claims for compensation for compensable occupational disease must be filed within two years after that date.

When an employee suffers and accident but neglects to file a claim petition within the two years, his claim is barred by the statute of limitations.

In the Huntoon case, the judge of compensation found that at the very latest, the claimant knew she had work-related carpal tunnel in 2004, when she underwent testing (EMG/NCS) for the condition.

The claimant appealed the dismissal ruling. On July 28, 2010 the reviewing court (New Jersey Appellate Court) affirmed the dismissal.

This is a great case for the defense! The Appellate Judges rejected the petitioner's argument that the Statute of Limitations did not start running until the date of her last exposure.

The Huntoon case demonstrates the value of a thorough investigation into the prior medical history of the claimant. By obtaining the claimant's lengthy prior medical history, which included the nine-year-old diagnoses of carpal tunnel, the employer was able to show the court that the claimant was well-aware of her allegedly-occupational condition long before she claimed it was work related.

Case: Huntoon v. Borough of Clementon, A-956-09T3 (App. Div. decided July 28, 2010).