PROCEDURAL HISTORY

On November 11, 2008 the Petitioner filed Claim Petition 2008-31179, wherein it is alleged that he suffered injury to “Bilateral knee replacements, both legs, orthopedic, neurological, neuropsychiatric” as a consequence of exposure while in the employ of the Respondent from December of 1992 to the present.

On January 12, 2009 the Respondent filed an Answer to the Claim Petition admitting employment but denying that the alleged injury arose out of and in the course of that employment.  

The parties were unable to come to an agreement thereafter and the matter was pretried and on April 5, 2011 trial commenced before the Honorable Kenneth A. Kovalcik, JWC.

STIPULATIONS

The parties stipulated that the Petitioner was employed by the Respondent from 1992 to the present and that at the time of the filing of the Complaint the petitioner was earning an amount sufficient to warrant the maximum rates permitted for that time for both Temporary and Permanent Disability. 

TESTIMONY

            The first witness presented was the Petitioner JOHN LATTOZ, who testified that he began working seasonally for a carpet installer, periodically for a clothing store and for short periods in sheet metal shops until 1980, when he began working for General Motors, where he stayed until about 1987.  He related that in 1981 he began working part time for a tree service and by 1985 he had started his own tree service business, while continuing to work for General Motors. He recalled that in 1989 he was offered a job doing tree services for the City of Bayonne, where he worked until December 7, 1992,  when he began working for the Respondent.  He asserted that when he started with the Respondent he was assigned to their landscape department and essentially continued doing tree service work until 1996. He was asked to describe the type of work  he performed over the 15 years he did tree work and rated it 7 to 10 on a 1 to 10 scale for exertion required.  He described tasks resulting in great stress on the knees and maintained that they were regular parts of the routine for tree services.  He testified that he experienced no problems with his knees up to the point where his job changed to janitorial work in 1996.  He described that work as “cleaning up the garbage, taking the garbage out of the kitchen area, offices, bathrooms, mopping and sweeping of  the plazas, the bathrooms, cleaning toilets, sinks, going outside to the booths…and pick[ing] up the garbage.”  He testified that he spent a large percentage of his time on picking up garbage, which entailed lifting bags weighing “probably 20 or 30 pounds,” except in the winter, when shoveling snow and salting walkways was required. He testified that he was engaged in the janitorial work until 2000 and that his knees began bothering him and he noticed he was becoming bowlegged at around that time.  He asserted that in 2000 he began working in maintenance and repair, which often required working on his knees and carrying heavy parts and equipment.  He related that this work continued until 2004 when he was moved to a job in communications which entailed installing equipment in vehicles, running cable and doing work requiring getting down on his knees, climbing ladders and bending.  He described increasing knee pain, even when at rest but asserted that he did not consult with a doctor until 2006, when he was told he was too young for knee replacement.  He understood that knee replacements lasted about 10 years and was advised to wait as long as he could, at least until he was 50.  He denied seeking any other medical advice until the worsening of his knees led him to consult with Dr. Goldman in 2008, at which time knee replacement was recommended.  When asked how he felt at the end of a shift between 2006 and 2008, he replied, “I couldn’t wait for it to be over… it was very painful, walking and standing, when I walked I walked  bowlegged…I would waddle, it was just  very painful, sitting was a relief.”  On cross-examination the Petitioner confirmed his description of activities and that he suffered no pain or discomfort in his knees until around the year 2000.  He denied consulting with a doctor or complaining to the Turnpike Authority about his knees between 2000 and 2004, went he was working in janitorial services.  He confirmed having filed workers compensation claims for injuries to other body parts and being familiar with the mechanism for reporting workers compensation injuries.  He repeated his recollection that he consulted with a doctor in 2006 concerning his knees and related:

I talked with the doctor, and he had told me that, you know, to wait, "You're young.  They usually last like ten years," and he said basically, "If you can hold out a little longer and then have it done," and he didn't do that type of surgery.  He would -- then he said, "If you want, then I could, you know, introduce you to another doctor that does it."  He didn't do replacements, and we said okay and went home and went on my way back to work.

He was then confronted with medical records (R2 in evidence) bearing a date of May 23, 2005 memorializing a visit with Dr. John Hurley of Tri-County Orthopaedic & Sports Medicine and conceded that was the visit he was recalling as 2006.  On redirect he repeated his contention that he noticed problems with his knees beginning in 2000 and asserted that he noticed a significant advance in the pain in about 2005. On recross the following exchange took place:

Q.     So you knew you had pain in your knee in 2000; is that correct?

A.    Yes.

Q.     Did you think it was as a result of your work-related activity?

A.    In both knees.  In both knees.

Q.     Did you think it was as a result of your work-related activities?

A.    Yes.

The Respondent presented no lay witness, leaving the Petitioner’s description of his work activity uncontroverted.

The Petitioner next presented Dr. Arthur Tiger who was admitted, without objection, as an expert in orthopedics and orthopedic surgery. He opined that the Petitioner’s work activity, as described in the hypothetical question presented to him (J1 in evidence), contributed to the arthritic condition in his knees requiring knee replacement surgery.  The Respondent presented Dr. Carl Mercurio, who was admitted, without objection, as an expert in orthopedics.  He opined that the Petitioner’s knee problems were the result of his weight, his age, the prior trauma and surgery to the knee as well as his smoking.  He denied any occupational causation and, on cross-examination opined that no occupational activity was likely to cause arthritis of the knee.  The parties stipulated that no neurological disability was established and no further testimony was required on the issue.

ARGUMENTS ON JURISDICTION

            Respondent argues that this Court is without jurisdiction in this matter by operation of NJSA 34:15-34, which provides, in pertinent part:

Notwithstanding the time limitation for the filing of claims for compensation as set forth in sections 34:15-41 and 34:15-51, or as set forth in any other section of this Title, there shall be no time limitation upon the filing of claims for compensation for compensable occupational disease, as herein above defined; provided, however, that where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease except as herein provided shall be barred unless a petition is filed in duplicate with the secretary of the division in Trenton within 2 years after the date on which the claimant first knew the nature of the disability and its relation to the employment;

Respondent notes Petitioner’s acknowledgement that he believed his knee pain, which he asserts started in 2000, was a result of his work related activities. Respondent further notes Petitioner’s acknowledgement that he consulted a doctor about that knee pain on May 23, 2005 and was told he needed knee replacements but was too young. Respondent asserts that on May 23, 2005 Petitioner “knew the nature of the disability and its relation to the employment” leaving this Court without jurisdiction over a claim filed November 11, 2008.

            Petitioner argues that his claim for benefits “derives from the replacement of both his knees” on July 22, 2008 and that he did not know the “nature of the disability” until that time.

DISCUSSION AND FINDINGS ON JURISDICTION

            The New Jersey Supreme Court charges us with the task of determining when the claimant knew the nature, extent, and seriousness of his disabilities and its relation to his employment and rules that “it is from that point that the notice and claim provisions relevant to occupational disease will begin to run. Brunell v Wildwood Crest Police Department 176 N.J. 225, 264 (2005).  From the earliest cases addressing claims based upon “discovery” of the potential claim the Court has provided that a worker must establish that he acted “within the prescribed time after he knew or had reason to know that he had a compensable injury.” Panchak v. Simmons Co., 15 N.J. 13, 25 (1954). Cited with approval in Brunell, supra. It is, however, necessary that the requisite knowledge be sufficient to place the worker unmistakably on notice that the injury constitutes a permanent injury. Earl v Johnson & Johnson, 158 N.J. 155 (1999).

            Here the Petitioner concedes that he believed that his knee pains were caused by the job as early as the year 2000, but he cannot be charged with notice of a resultant permanent disability consequent solely to the experiencing of aches and pains.  That situation changed to a profound degree on May 23, 2005 in the course of his examination by Dr. Hurley. According to the Petitioner at that time he 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.  NJSA 34:15-34 bars his claim unless he filed a claim petition before May 23 of 2007.  Since he failed to file a Petition until November 11, 2008 his claim is barred and this Court is without jurisdiction.  The instant claim petition is therefore dismissed, with prejudice.  No further findings are permitted in light of the finding concerning jurisdiction.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

March 26, 2012 

             
                                             ________________________________

                                                              KENNETH A. KOVALCIK, JWC