Before: Honorable Elaine B. Goldsmith
Judge of Compensation

Appearances: Curzi & Artigliere, Esquires
By: Leonard J. Artigliere, Esquire
And Edward Kein, Esquire
Attorney for Petitioner

Thomas H. Green, Esquire
By: John J. Jasieniecki, Esquire
Attorney for Respondent, Hadji Construction, Inc.

Howard W. Crusey, Jr., Esquire
By: Marcia Miller, Esquire
Stephen Lazzari, Esquire
Attorneys for Respondent Furino & Son, Inc.

Claim Petition 96-031650 sets forth a claim arising from an admitted accident that occurred on September 27, 1993. Petitioner was earning $1,160 per week which gave rise to the maximum temporary disability rate. Respondent Hajdu Construction (Hajdu) paid five weeks of temporary disability benefits at the maximum rate, ending October 31, 1993. All authorized medical treatment was furnished and paid for by the respondent. Petitioner delayed filing his claim petition until August 9, 1996. The issue is whether the filing of the claim is barred by the statute of limitations or whether there should be a tolling of time from which the two-year period would run. Dependent upon that determination, it could be necessary to determine the nature and extent of the permanent disability.

Claim petition 97-012427, alleges occupational exposure from May 2, 1976 through May 19, 1995, and was filed on May 22, 1995 against Hajdu. In 1995 petitioner left Hajdu and began employment with Furino & Son, Inc. (Furino). Hajdu answered the claim petition and then on its motion, Furino was joined as a respondent due to petitioner’s subsequent employment. Working for Furino, his weekly pay rate was the same as he had earned from his previous job. Both respondents admit only petitioner’s employment. They deny that petitioner suffers from an occupational disease. The court must determine whether petitioner suffered an occupational disease arising out of and in the course of employment, due to the work. Dependent upon that determination it may be necessary to determine the nature and extent of the disability if any, and the credit to which a respondent might be entitled from the previous injury.

Also in issue is the responsibility for repayment of a lien from the New Jersey Division of Temporary Disability Insurance in the amount of $3,598.58 paid from November 19, 1996 through February 2, 1997, during the time petitioner was recovering from surgery.

The evidence presented in these matters consists of the lay testimony of petitioner and Mr. Barry Hajdu owner of Hajdu Construction. There was expert medical testimony from petitioner’s orthopedic expert, Dr. Edwin Turner who is Board Certified by the American Board of Preventative Medicine in Occupational Medicine. In addition, petitioner put forth testimony from a neurological and neuropsychological expert, Dr. Bruce Johnson, Board Certified by the American Board of Neurology and Psychology. Respondent presented the report of orthopedic expert, Dr. Peter Blumenthal which was submitted into evidence without testimony or cross examination. Documents placed into evidence were Warren Hospital records, answers to interrogatories, Dr. Norman L. Maron’s report, the 1996 operative report, office notes from Dr. Robert Friedman of the Aquatic and Physical Therapy Center and Dr. Turner’s report.

Petitioner commenced working for Hajdu in 1975 doing general carpentry work, repairs to buildings, concrete work; the sort of activities that required climbing up ladders and heavy lifting. On September 27, 1993, while standing on a scaffold, a piece of plywood fell from high above, hit him in the left arm and dislocated his left shoulder. Reported immediately to the supervisor, he was taken to Warren Hospital where he was treated by Dr. Maron. X-rays were taken. The arm was set and put in a sling. He returned to work in five weeks but continued to receive aquatic physical therapy treatment for three months thereafter. Petitioner continued doing exercises on his own and took Nuprin for the pain. Promoted to carpenter/foreman from which position he could assign others to do the harder tasks, he testified, "The bulk of my heavy work was done when I was in the employment of Hajdu." Although he claimed that his shoulder continued to bother him all the time, petitioner stated that he never complained to his employer about his shoulder or sought any further medical treatment for the next two years until the 1996 incident, when he was no longer employed by Hajdu.

For several years Hajdu had contracted with Hoffman LaRoche in Belvedere to provide overall maintenance to the company. In 1994 the contract was awarded to Furino. Petitioner left Hajdu and commenced working for Furino, sometime in May 1995, at the same site doing the same work as before. Petitioner testified that working in this job he continued as carpenter/foreman and his responsibilities were "basically planning the work, supervising individuals and ordering materials." He did not actually commence doing more of the manual work himself until 1999 when the work crews were downsized. On July 7, 1996, while playing with his children in his home pool Mr. Kreis threw a ball and felt as if his shoulder had dislocated in the same manner as the original injury. At the hospital, once again treated by Dr Maron, the shoulder was put back into place, the arm placed in a restraint, and an MRI taken. Based on the MRI, petitioner was informed that the same injury had reoccurred and that surgery was now indicated. Petitioner continued to work for Furino, until November 1996 when the surgery was performed at Warren Hospital. His medical bills for the 1996 surgery were paid by his private health insurer requiring his personal contribution of 15% of the cost of the physical therapy treatment and drugs. Returning to work in February 1997, he was unable to lift the arm overhead or lift heavy objects, and was still in pain.

Petitioner complained that he has lost most of the strength in his right arm, is in constant pain which increases with weather changes, has a hard time sleeping, and that there is a looseness in the shoulder. Mr. Kreis was told by the doctors that there is nothing further that can be done to alleviate any of these problems. He also complained that he has emotional problems caused by his shoulder weakness. I note that neither claim petition alleges any psychological disability caused by the 1993 accident or the occupational claim. Therefore, there being no psychological disability alleged in either one of the claim petitions, I will not consider the psychological complaints.

Mr. Barry Hajdu, owner of Hajdu Construction testified that he had no records of petitioner’s employment or the 1993 accident, as it has been his custom to purge these records after 5 years. He remembered nothing more than the fact that there had been an accident and that petitioner had been injured. It was Mr. Hajdu’s policy to immediately turn all such matters over to the compensation insurance carrier.

Petitioner’s orthopedic expert, Dr. Edwin Turner, examined petitioner on June 20, 1997 noting that he had suffered an anterior dislocated left shoulder and fracture. The doctor testified that petitioner is right hand dominant. Petitioner told the doctor that the injury occurred while he was throwing a ball in the pool. Based upon that information, in the doctor’s opinion the forward thrust of the arm caused the shoulder to pop out; due to the lack of a complete gasket around the head of the humerus holding it and the damaged surrounding musculature, caused by the previous injury. Dr. Turner defined dislocation as the "ball coming out of the socket known as the glenoid." According to this expert within a reasonable degree of medical certainty, this type of event would not have caused cause a dislocation of the shoulder unless there were a significant recurring dislocation problem. If the shoulder had not previously been injured, the act of throwing the ball would not have caused the shoulder to dislocate. The first accident to the shoulder caused a small bone fragment and a fracture dislocation, and was correctly treated without an operation. Successful surgery for this type of injury is very difficult to perform. Examination revealed a 3-inch scar below the acromioclavicular joint from the surgery. Dr. Turner stated, "The head of the humerus was prominent indicating the muscles over the top of the shoulder were not as full or developed as could be expected. This could be an atrophy resulting from disuse." Dr. Turner also stated there was some weakness in the supraspinatus tendon indicating some impingement. Although the doctor referred to recurrent dislocations, he admitted that he did not know of any dislocations from 1993 though July 1996. The only evidence of recurrent dislocations are in the July 7, 1996 emergency hospital report taken directly after the pool accident, in which the petitioner stated that he had dislocated his shoulder the week before and had moved it back into place himself. When asked whether the four year interim period from 1993 to 1997 was consistent with an occupational "deterioration or deprivation", Dr. Turner responded " I can’t speak for the period from 1993 through July 1997 but a dislocation is a very bad thing". Dr. Turner’s diagnosis was "status post traumatic surgery to the left shoulder with recurrent dislocations, status post operation x2, the most recent being excision of the glenoid rim Bankhardt repair and inferior capsular shift to the left with recurrent instability of the left shoulder, leaving residuals of operative scarification, synovitis and loss of range of motion". He estimated a disability of 40%.

The June 23, 1998 report from Dr. Peter Blumenthal, respondent’s orthopedic expert, was accepted into evidence. Petitioner is reported as being right hand dominant. This expert found some "weakness on the left side in the contour of the anterior portion of the deltoid with the 8cm scar from the anterior portion of the left shoulder from the AC joint to the axillary fold", full abduction and internal rotation motions were possible. The 1996 MRI films show a "glenoid ligament partial tear, partial avulsion fractures in the area of the glenohumeral joint, and Hill Sacks deformity." In Doctor Blumenthal’s opinion the 1993 and 1996 incidents were isolated incidents and there was nothing in the medical or surgical records he reviewed or in his examination to sustain the claim of cumulative trauma. The doctor also had some findings about petitioner’s back injuries that were not relevant to the two claims under consideration. The estimate of permanent disability of the shoulder was 7½ %.

Dr. Bruce Johnson, testifying as petitioner’s neuropsychological expert, found petitioner to be anxious and worried about the weakness in his arm, and about being able to continue in his occupation, for which he estimated a generalized anxiety disorder with a disability of 17½ %. He also examined the superscapular nerve and the axillary nerves of the left shoulder, finding a weakness in the muscles and the sensory component of the nerves involved, estimating a neurological disability of 35%.

Before addressing the issue of compensability or disability regarding the 1993 injury, it is necessary to consider whether the statute of limitations precludes petitioner’s claim petition from consideration, requiring that the matter be dismissed for lack of jurisdiction; or whether there is another date from which the two year limitations period can be calculated.

N.J.S.A. 34:15-51 provides:

Every claimant for compensation...shall... file a petition...within 2 years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then within 2 years after the failure of the employer to make payments pursuant to the terms of such agreement; or in case a part of the compensation has been paid by the employer, then within 2 years after the last payment of compensation...

In this matter, petitioner’s accident occurred on September 27, 1993, he received temporary disability payments for five weeks until October 31, 1993, and continued with physical therapy for three months after the accident, until December 1993. Respondent stated that further medical treatment was provided until May 15, 1994. Medical treatment is considered a payment of compensation. It is undisputed that petitioner neither received nor requested any medical treatment after May 15, 1994. Mr. Kries admitted that there was no agreement between him and respondent Hajdu for payment of any additional compensation for this injury. Nor had there been any conduct on the part of Hajdu to lull him into any false sense of security that caused him to fail to file a timely petition. Mr. Kreis had refrained from filing because of his own personal concern about losing his job. The claim petition was filed August 1996, more than two years after the date of the injury on September 27, 1993, and more than two years after the date of the last treatment by the doctor in May 1994. There was no testimony to any agreement between the employer and employee for further compensation, and petitioner did not request nor was he denied any further medical treatment between the May 1994 and August 1996. All of the criteria of the statute having been satisfied, the claim petition should be dismissed for lack of jurisdiction.

Petitioner directs the court’s attention to Witty v. Fortunoff, 286 N.J.Super. 280 (App. Div. 1996), which addresses the issue of medical treatment lulling the petitioner into not filing a claim petition. Here the court clearly stated that medical treatment is different from medical examinations arranged for the sole purpose of informing employees whether they are entitled to additional compensation. Under the specific facts of this case, various letters from the employer and the insurance company could reasonably have been viewed by the petitioner as continuing medical treatment. The court held that the claim petition was timely filed. In Mr. Kreis’ case there was no indication that further medical treatment was offered or requested, all temporary disability benefits had been paid and he had returned to work. There was nothing to indicate that the employer had lulled him into delaying the filing of the claim petition. In fact, Mr. Kreis testified that it was his own personal concern about keeping his job that caused him to delay filing the claim petition, and that at no time had the employer discouraged him from filing.

The second case, Vispisiano v. Ashland Chemical Co. 107 N.J. 416 (1987) involved discovery and the receipt of medical information extending the time to commence counting the two year filing limitation. In the Kreis matter, there was no claim of delay in the request or receipt of discovery or of medical information from any source that could affect the two-year filing limit.

The final case cited, Graves v. Church & Dwight Company, Inc., 225 N.J. Super 49 (App. Div. 1988) concerns the ingestion of sodium bicarbonate causing stomach rupture. After the manufacturer moved for dismissal on the basis that the complaint was barred by the limitations period, the court emphasized the well established discovery rule that it is "an equitable principle pursuant to which the accrual of a cause of action is not measured by the date the injury occurs but deferred until the time when the injured person first knows that he has sustained an injury and that it was inflicted by the fault of another." In the Kreis matter, there was no question as to the date of the 1993 accident as it occurred at work, petitioner knew that he had sustained an injury at the moment it happened, he immediately sought medical treatment which was provided by respondent. There is no question that respondent Hajdu took full responsibility for the accident, as temporary disability benefits were paid until petitioner returned to work.

Respondent cites Mangieri v. Spring Tool Co. 68 N.J. Super. (Law Div. 1961) where the employee was treated by the authorized doctor and given a brace to wear for six months. The petition for compensation was filed more than two years after the visit to the doctor. There is an express intent to prevent the employer from lulling the employee into not filing a claim in reliance upon the treatment being furnished by the employer. Moreover, the limitation period begins to run when the petitioner is discharged by the physician or within two years after the last payment of compensation. In the Kreis matter, petitioner never claimed that the employer was actively responsible for his delay in filing, but blamed it upon his own fear of losing his job. Had Mr. Kreis filed the petition when he left Hajdu in 1995 he would still have been within the statutory time limit.

There is no question that petitioner is a very hard working man, with a conscientious work ethic. When he was injured in 1993, he received medical treatment until May 15, 1994. There is no evidence that following his return to work petitioner complained to his employer that his shoulder still hurt, that there were incidents of the shoulder dislocating when he was able to reset it into place or that he sought any further medical treatment for his problems. The petition was filed more than two years from the date of the accident and more than two years after the last date that petitioner received payment of compensation or treatment. None of the cases cited provide any reasons relating to the facts of this case that would provide an alternative date from which to count the two-year time limit for filing the claim petition. Therefore, I find that the petition was not filed within the time permitted by the statute of limitations, N.J.S.A.34:15-51, and the claim is barred. Claim petition number 96- 031650 is therefore dismissed for lack of jurisdiction.

Claim petition number 97-012427, filed in April 1997, is a claim for an occupational disease alleging cumulative trauma to petitioner’s left shoulder from 1976 through 1995, from repetitive use and a partial tear, resulting in shoulder tendinitis. N.J.S.A. 34:15-33 requires that an employee give notice of his occupational disease to his employer. The statute provides:

Unless the employer during the continuance of the employment shall have actual knowledge that the employee has contracted a compensable occupational disease, or unless the employee or someone on his behalf, ...shall give the employer written notice or claim that the employee has contracted a compensable occupational disease, which notice to be effective must be given within a period of five months after the date when the employee shall have ceased to be subject to that exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relationship to his employment, whichever period is later in duration, no compensation shall be payable on account of the death or disability by occupational disease of the employee.

Petitioner left employment with Hajdu in May 1995 but did not file his occupational claim against that employer until April 1997. Petitioner was well aware of the problem with his left shoulder after his accident in 1993. After receiving treatment and returning to work he continued to perform the same type of work he had done before. Petitioner never testified that he reported or complained to Hajdu about the condition of his shoulder while he was working there nor did he state that he needed to take any unusual number of sick days off from work during the two years he continued working for him. However petitioner did testify that during the remaining two years he never requested nor was denied any medical care. As far as the employer knew the shoulder had been injured in a compensable accident and he had paid all required compensation. Respondent had no reason to assume that petitioner was developing an occupational disease nor that an occupational condition existed. Petitioner admitted that he had not informed Hajdu that he was developing an occupational disease from the repetition of his daily tasks, admitted that he had not complained to Hajdu nor filed any written report, despite the fact that commencing in 1993 his shoulder problems were related to his work and that any increased disability might be attributed to his daily work tasks. Doctor Turner commented that the medical records indicated that after he left Hajdu, Mr.Kries’ shoulder had dislocated with very little provocation, so petitioner must have been aware from 1993 through 1995 that he was having problems. Nonetheless, he failed to file his petition based on occupational exposure until almost two years after leaving Hajdu. Therefore, I find that neither written notice nor any other notice was given to respondent Hajdu within the required statutory time limits.

When he commenced working for Furino, despite awareness of his shoulder weakness and the fact that he was doing the same kind of work for this employer, petitioner never reported his shoulder problem to Furino either in writing or by notice of any kind, and he never complained or notified Furino that the work effort had caused the shoulder weakness to materially worsen. The record is silent on Furino’s ever knowing about petitioner’s shoulder difficulty until after the 1996 accident.

Therefore I find that petitioner has failed to notify Hajdu that he was suffering from an occupational disease either during the time he has employed or within ninety days after he left the employment in 1995. I find that he has failed to notify Furino that he was suffering from an occupational disease although petitioner was well aware of the nature of his disability and the relationship to his employment when he commenced working for Furino in 1995.

In claiming a compensable occupational disease there must be a satisfaction of N.J.S.A. 34:15-31 which states in part:

a. For the purpose of this article, the phrase "compensable occupational disease"shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are characteristic of or peculiar to a particular trade, occupation, process or place of employment..

After reviewing the evidence it is clear that petitioner’s shoulder problems arose out of and in the course of his employment but was due to the 1993 accident, there being no evidence to indicate any shoulder disability before then. Mr. Kries testified that after he was injured in 1993 he became a carpenter/foreman and was able to direct others to do the hard labor. He described his daily tasks in broad sweeping terms, did not specify how any work movement or effort affected his left shoulder when he was right hand dominant, failed to show how the conditions of the workplace gave rise in a material degree to the alleged occupational disease in his left shoulder or caused it to become materially worse. He clearly stated that when he left Hajdu and joined Furino he was doing the same job in the same place, performing in a supervisory capacity rather than doing the actual manual labor. The testimony of Dr. Turner was completely lacking in any description of how the daily exposure of petitioner was responsible in a material degree for the cause of the injury to become materially worse, or contributed in a material manner to any continuing weakness or deterioration of the shoulder. In fact the term "supraspinatus tendonitis" was not mentioned at all during the doctor’s testimony which centered around the 1996 accident in the pool, how the shoulder would not have dislocated if it had not been previously weakened in the 1993 accident, and the correctness of the surgery performed. The doctor was unable to causally connect any occupational deterioration during the four-year period between the two incidents as he had no information about petitioner’s medical condition during those years. I find that the testimony of the doctor has failed to causally relate petitioner’s shoulder condition as an occupational disease, arising out of or in the course of his employment. Petitioner has failed to provide sufficient evidence to show that the disability he claims was responsible for the 1996 dislocation was not directly and causally related to the 1993 accident, failed to show that it was causally related to the work exposure. I find that petitioner has failed to fulfill the requirement for presenting sufficient medical evidence to satisfactorily prove that petitioner suffered from an occupational disease that arose out of and in the course of work which were due in a material degree to place of employment.

A large portion of the testimony and evidence submitted involved the 1996 accident that took place in the petitioner’s home pool although neither claim petition specifically recites the date of the accident or the surgery that followed. Both claim petitions allege that any increased disability arose before May 1995. This accident took place in 1996, after petitioner left the employ of Hajdu but was still employed by Furino . As far back as March 22, 1994 in the final report from the Aquatic & Physical Therapy Center petitioner had full range of motion and no discomfort doing his exercises; he had been working steadily for two years since his release from therapy without any need for medical treatment. There is no evidence of any other traumatic incident which in and of itself would have caused further damage. It stands to reason that the shoulder having been once damaged in 1993, even if completely useable was in a weaker condition than it had been before that accident. Dr. Turner’s testimony validates 1993 as the manifestation date and directly relates the two accidents. Other than the 1996 accident, petitioner in the present case has failed to present any medical evidence or shown any causal relationship between his work exposure and the claimed material worsening of his shoulder problems during the period of his employment with Furino. Therefore, I find that petitioner has failed to prove the occupational disease claim against Furino.

I find that Hajdu is the employer responsible for the entire disability, as the manifestation occurred in 1993 when petitioner was working for that respondent. Respondent Furino cannot be held responsible for the 1996 accident or costs arising therefrom since the manifestation occurred before the time of petitioner’s employment. Since the manifestation of the shoulder problems arose from the 1993 accident, and that claim petition against Hajdu has been dismissed for lack of jurisdiction on statute of limitations grounds, petitioner has no further recourse against respondent Hajdu for payment of compensation or medical bills arising from the 1996 accident.

For the above stated reasons I dismiss claim petition 96-031650 as barred by the statute of limitations. Due to the dismissal, is not necessary for me to find the extent of the disability.

For the above stated reasons I dismiss claim petition 97-012427 for failure to sustain the burden of proof that petitioner developed supraspinatus tendinitis, as an occupational disease, causally related to his work. Due to the dismissal it is not necessary for me to find the extent of the disability.

Since I have dismissed both claim petitions neither respondent is responsible for repayment of the Temporary Disability Insurance lien against petitioner for the period he was recovering from the 1997 shoulder surgery.

I will allow a stenographic fee of $750 to John F. Trainor, payable one half by each respondent.

Date: January 26, 2001 -----------------------------------------------

Elaine B. Goldsmith, J.W.C.