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).