Opinion
DOCKET NO. A-4335-11T2
06-05-2013
JOHN M. LATTOZ, Petitioner-Appellant, v. NEW JERSEY TURNPIKE AUTHORITY, Respondent-Respondent.
Andrew R. Topazio argued the cause for appellant (Marciano & Topazio, attorneys; Mr. Topazio, on the briefs). Robert L. Ghelli argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Ghelli, of counsel and on the brief; Michael J. Greenwood, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Ashrafi and Espinosa.
On appeal from New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2008-31179.
Andrew R. Topazio argued the cause for appellant (Marciano & Topazio, attorneys; Mr. Topazio, on the briefs).
Robert L. Ghelli argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Ghelli, of counsel and on the brief; Michael J. Greenwood, on the brief). PER CURIAM
Petitioner, an employee of the New Jersey Turnpike Authority (the Authority), appeals from the dismissal of his workers' compensation claim on statute of limitations grounds. We affirm.
N.J.S.A. 34:15-34 provides in pertinent part:
[W]here 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 . . . within 2 years after the date on which the claimant first knew the nature of the disability and its relation to the employment . . . .Claims for compensation not brought within the two-year period "shall be forever barred[.]" N.J.S.A. 34:15-41.
On November 11, 2008, petitioner filed a workers' compensation claim against the Authority. To be timely filed, this claim had to be filed no later than two years after the date when Lattoz "first knew the nature of the disability and its relation to [his] employment[.]"
The claim petition identified the injury as "bilateral knee replacements, both legs, orthopedic, neurological, neuropsychiatric." Petitioner stated that the occupational exposure that caused the injury was "12/1992 to 11/11/08 & continui[ng]." He further stated that the injury occurred because he "was exposed to constant use of body & limbs and constant forces used on his body."
The evidence revealed that petitioner first injured his left knee while playing football in 1972. He had surgery on his left knee in 1978 for a torn meniscus. He testified that he did not have any problems with or pain in his knee thereafter, and that he was able to begin his employment with the Authority without restriction.
Petitioner began working with the Authority in 1992, and worked as a landscaper from 1992 to 1996. In 1996, petitioner "injured [his] back doing tree work," and was out of work for some period of time as a result. He testified that he did not have any problems with his knees at this point in time.
Petitioner began work as a toll technician in 2000. He "started getting achiness" in his knees and noticed that his legs were becoming "bowlegged." Petitioner testified that he "had a hard time walking and standing" and had no pain in his knees when he was sitting. Petitioner testified further that the pain in his knees increased during the four years he worked as a toll technician. Despite his discomfort, he did not consult a doctor at this time or express any complaints to the Authority. Nonetheless, petitioner testified that as early as 2000, he attributed the pain in his knees to his work activities:
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.
In 2004, petitioner began working as a communication technician. He testified that this position required him to kneel for approximately two hours per day. He testified that "mainly" his problems were "getting up and down from the kneeling position." He further testified that he had pain in his knees any time he was walking or standing.
On May 23, 2005, petitioner consulted an orthopedist, John A. Hurley, M.D., for "evaluation of bilateral knee pain, left worse than right." The history taken by Dr. Hurley included the following:
He has been having complaints of pain in both knees for a number of years now. He states that he gets pain with any type of prolonged standing or walking. He states he has had multiple injuries to the knees dating back to 1972 when he was playing football in high school and had his first knee injury. Then, in 1978, he had surgery for a torn meniscus. He continues to complain of persistent pain in both of his knees with any type of prolonged walking or standing.Dr. Hurley diagnosed petitioner, then forty-six years old, with bilateral osteoarthritis of the knees. After discussing operative and non-operative treatment options, it was decided that petitioner would begin a "vigorous rehab program." Petitioner testified the doctor advised him that he was too young for a knee replacement at that time, and he should wait until after he turned fifty to have the surgery. He did not have any accidents after this examination that caused further injury to his knees.
In April 2008, petitioner consulted an orthopedist, Robert Goldman, M.D., because his "knees were getting really bad" and he was having substantial difficulty walking and standing. From the time he saw Dr. Hurley in 2005 to the time he saw Dr. Goldman, petitioner did not see another doctor or have physical therapy despite the fact that he was having difficulty doing his job. He testified that it was very painful walking and standing and he "couldn't wait for [his shifts] to be over."
After taking x-rays of petitioner's knees, Dr. Goldman told petitioner that he was "definitely a candidate for total knee replacements" on both knees. Dr. Goldman performed a bilateral knee replacement on petitioner on July 23, 2008. The Authority paid for petitioner's surgery.
Petitioner testified that the surgery relieved the pain he experienced standing and walking, but he could not kneel as well. He returned to work in November 2008 and resumed "full duty."
Petitioner presented the testimony of Arthur H. Tiger, M.D., who was qualified as an expert in the fields of orthopedics and orthopedic surgery. Dr. Tiger examined petitioner in February 2009 and February 2011, and diagnosed him with "[p]rogressive traumatic arthritis of both knees resulting in bilateral knee replacements[.]" Dr. Tiger opined that "the type of employment that [petitioner] had and the type of work he did presented his knees with various risk factors that led to the progressive deterioration and the need for the knee replacements." Because petitioner had the knee replacements at "a relatively early age," Dr. Tiger opined that "these risk factors from employment were very pertinent." Dr. Tiger further testified that because the arthritic symptoms "in his previously operated left knee were mirrored in [petitioner's] non-operated right knee[,]" he concluded that petitioner's prior surgery was not the primary cause of the knee pain he experienced in 2000 through 2008. Dr. Tiger admitted the possibility that petitioner's prior employment installing carpet and performing tree cutting services "could have created a condition in both knees that pre-existed his employment with the [Authority.]" He also admitted that petitioner's height and weight were "non-occupational risk factors" that could have contributed to his development of arthritis.
Petitioner is six feet, six inches tall and weighs approximately 280 to 300 pounds.
The Authority presented the testimony of Carl F. Mercurio, M.D., who was qualified as an expert in the field of orthopedic surgery. Dr. Mercurio reviewed petitioner's medical records and examined him in February 2010. Dr. Mercurio cited petitioner's "overweight and obesity" as a non-occupational risk factor, stating that "obesity is one of the major factors that contributes to osteoarthritis of the knee." He also identified petitioner's age, as well as his prior knee injury and the resulting surgery, as "[v]ery strong non-occupational factors." Although Dr. Mercurio acknowledged that petitioner's work-related activities constituted occupational risk factors, he characterized these as "[e]veryday people activities" and concluded that petitioner's "non-occupationals far outweigh his occupational risk factors."
By order dated March 26, 2012, the Judge of Compensation dismissed petitioner's claim with prejudice on statute of limitations grounds. The judge explained,
Here the Petitioner concedes that he believed that his knee pains were caused by the job as early as the year 2000, but [argues] 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. N.J.S.A. 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.
Petitioner argues on appeal that he lacked the requisite knowledge prior to July 23, 2008, the date of his surgery. He argues that although he and Dr. Hurley "discussed generally" the utility of a knee replacement in 2005, Dr. Hurley did not impress upon petitioner that he "needed" the surgery, or that the surgery was "inevitable." He argues that this was insufficient to inform him of the severity of his injury, and that his injury "did not fully manifest until . . . after the knee surgery." In response, the Authority argues that following Dr. Hurley's 2005 diagnosis, petitioner "knew that he suffered from osteoarthritis, needed bilateral knee replacement surgery, believed that his knee pain was the result of his employment with [the Authority] and modified his activities at home and work."
We "generally give substantial deference to administrative determinations[,]" Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1991), and "will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole[,]" In re Taylor, 158 N.J. 644, 657 (1999). "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003); see also Earl, supra, 158 N.J. at 161 (internal quotation marks omitted).
The New Jersey Workers' Compensation Act "provides a remedy to an employee who suffers injury "arising out of and in the course of employment" either by accident, N.J.S.A. 34:15-7, or by contracting a compensable occupational disease, N.J.S.A. 34:15-34." Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 236 (2003). Although the Act is "remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished[,]" Kahle v. Plochman, Inc., 85 N.J. 539, 547 (1981), "the preference for a liberal construction of the Act must be constrained by the plain meaning of the statute and the underlying purpose of the legislature." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).
N.J.S.A. 34:15-51 requires claimants to file a petition for workers' compensation resulting from accidental injury on the job within two years of the accident. Unlike an accident, the precise onset of an occupational disease may be difficult to ascertain. Earl, supra, 158 N.J. at 163; Peck v. Morning Ledger Co., 344 N.J. Super. 169, 185 (App. Div. 2001). As a result, "N.J.S.A. 34:15-34 and our courts have recognized that the period for filing an occupational claim does not run until two years after the date the worker knew the nature of the occupational disability and its relationship to employment." Id. at 184. For statute of limitations purposes, "knowledge of the nature of [the] disability connotes knowledge of the most notable characteristics of the disease, sufficient to bring home substantial realization of its extent and seriousness." Earl, supra, 158 N.J. at 163 (internal quotation marks omitted).
As detailed above, petitioner acknowledged that in 2000, he began experiencing pain in his knees and that he attributed this pain to his employment activities. When he consulted Dr. Hurley in May 2005, both "operative and non-operative intervention" was reviewed. It is evident that the operative intervention discussed included knee replacements since petitioner testified that Dr. Hurley told him he "was too young" for the knee replacement surgery because the prosthetics "would only last [approximately] ten years," and suggested that petitioner wait to have the surgery.
The record thus shows that in May 2005, petitioner had the requisite amount of "knowledge of the nature of [his] disability" that was "sufficient to bring home substantial realization of its extent and seriousness." Earl, supra, 158 N.J. at 163 (internal quotation marks omitted). Accordingly, the decision by the Judge of Compensation that petitioner had until May 23, 2007 to file his worker's compensation claim pursuant to N.J.S.A. 34:15-34 was "supported by substantial credible evidence in the record" and was not "arbitrary, capricious or unreasonable." See Taylor, supra, 158 N.J. at 657. Petitioner's failure to file his claim within this limitations period justified the trial court's dismissal of his claim.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION