SUZANNE HUNTOON - v. BOROUGH OF CLEMENTON SELECTIVE INSURANCE COMPANY and SCIBAL ASSOCIATES, INC -Respondents

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0956-09T30956-09T3

SUZANNE HUNTOON,

Petitioner-Appellant,

v.

BOROUGH OF CLEMENTON,

SELECTIVE INSURANCE COMPANY,

and SCIBAL ASSOCIATES, INC.,

Respondents-Respondents.

________________________________

Argued May 4, 2010 - Decided July 28, 2010

Before Judges Fuentes and Simonelli.

On appeal from a Final Decision of the State of New Jersey Department of Labor, Division of Workers' Compensation, Petition No. 2007-11881.

Susan L. Moreinis argued the cause for appellant.

Christopher M. Campanaro argued the cause for respondent Selective Insurance Company (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. Campanaro, of counsel and the brief).

Christopher J. Saracino argued the cause for respondent Scibal Associates, Inc. (Pietras, Saracino, Smith & Meeks, L.L.P., attorneys).

PER CURIAM

Petitioner Suzanne Huntoon appeals from an order of dismissal with prejudice entered by a judge of compensation on September 23, 2009. We affirm.

We derive the following facts from the evidence presented at trial.

On July 25, 1994, petitioner began her employment as a part-time clerk with the Borough of Clementon Police Department. In 1997, she became a full-time senior clerk typist.

In 1998, petitioner developed tingling and numbness in her right hand. She admitted that on July 20, 1998, her then primary care physician told her that her condition was probably work-related because of the typing and constant hand movement her job required.

On April 11, 2001, petitioner saw her new primary care physician, Dr. Koerner, complaining about pain in her right hand. The doctor diagnosed plaintiff's condition as "[right] carpal tunnel [syndrome,]" and prescribed a wrist brace.

Petitioner saw Dr. Koerner again on June 12, 2003, complaining about pain and numbness in her right hand. The doctor diagnosed plaintiff's condition as "carpal tunnel [syndrome right] (keyboard use)." Petitioner did not comply with the doctor's recommendation that she consult a hand surgeon.

Petitioner saw Dr. Koerner again on July 23, 2003, complaining of inflammation of her right hand. The doctor again diagnosed her with carpal tunnel syndrome in her right hand, prescribed Celebrex, and instructed her to continue using the wrist brace.

On July 9, 2004, an EMG/NCS study confirmed that petitioner had a severe degree of carpal tunnel syndrome in her right hand. She saw Dr. Koerner on July 13, 2004, and told him that she was "convinced she has [carpal tunnel] syndrome [secondary] to work."

On October 23, 2006, petitioner injured her right hand and arm at work while attempting to prevent files from falling from a drawer. On April 30, 2007, she filed a claim petition for an occupational exposure ("repetitive motion") from 1994 to the present resulting in the development of right carpal tunnel syndrome. Scibal Associates, Inc. (Scibal), the insurance carrier for respondent Borough of Clementon (Borough) for the period January 1, 2001 to the present, filed an answer on the Borough's behalf generally denying appellant's allegation. In its answer, Scibal asserted "all defenses available" under the Workers' Compensation Act [WCA].

On January 19, 2009, petitioner filed an amended claim petition adding Selective Insurance Company of America (Selective), the insurance carrier providing workers' compensation insurance coverage for the period January 1, 1994 to December 31, 2000. Selective filed an answer requesting dismissal of the claim pursuant to N.J.S.A. 34:15-34, -41 and -51.

The trial began on March 12, 2009. Based on petitioner's admission that she knew in 1998 she had a work-related disability, Scibal moved to dismiss the claim on statute of limitations grounds. Although petitioner's counsel recognized "there are statute of limitations defenses[,]" he maintained that petitioner's time to file the claim was tolled until her condition worsened to the point that she needed surgery.

In an oral decision rendered September 23, 2009, the judge of compensation dismissed petitioner's claim with prejudice pursuant to N.J.S.A. 34:15-34, finding that she knew she had a work-related disability in July 1998, and failed to timely file an occupational claim. The judge of compensation also found that at the very latest, petitioner knew in July 2004 that she had work-related carpal tunnel, and that

[t]wo [diagnoses] of carpal tunnel syndrome within six years, confirmed by EMG/NCS is sufficient to have alerted petitioner that she did, in fact [have] a viable occupational claim. Again, it is very clear from Dr. Koerner's records that as of 07/13/04 petitioner was convinced that . . . she had carpal tunnel syndrome secondary to work. Therefore, her own family doctor's records are clear evidence of her knowledge of the disease and relation to her employment.

On appeal, petitioner contends that Scibal is equitably estopped from asserting a statute of limitations defense because it did not assert this defense in its answer as required by N.J.A.C. 12:235-3.1(b)(1)(xi), and delayed in asserting the defense for fifteen months, causing her to incur the expense of discovery, retaining an expert, and appearing at trial. Alternatively, petitioner contends that the statute of limitations for her occupational disability was tolled until the date she knew that the disability was compensable, or until the date of her last exposure.

Our review of a judge of compensation's decision is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Linquist v. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the factual findings and legal determination 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.'" Linquist, supra, 176 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). Applying these standards, we discern no reason to overturn the judge of compensation's decision.

Petitioner's estoppel contention lacks merit. The statute of limitations is not a defense in workers' compensation cases. Rather, the timely filing of a workers' compensation claim is "jurisdictional and cannot be waived." Baijnath v. Eagle Plywood & Door Mfrs., 261 N.J. Super. 309, 314 (App. Div. 1993); see also Panzino v. Continental Can Co., 71 N.J. 298, 306 (1976). If a claim is not timely filed, the workers' compensation court lacks jurisdiction to consider it.

N.J.A.C. 12:235-3.1(b)(1)(xi), which requires an answer to contain an admission or denial of jurisdiction "if known[,]" does not change that result in this case. Scibal and Selective did not know until petitioner testified under oath at trial that she knew as early as 1998, and as late as 2004, that she had work-related carpal tunnel syndrome.

Further, even if the statute of limitations was a defense in workers' compensation cases, both Scibal and Selective properly asserted it in their answers, either directly or by reference to the WCA. Thus, petitioner was well aware before trial of the jurisdictional defense, and, in fact, her attorney so acknowledged.

Petitioner's contention that the statute of limitations did not accrue until the date she knew her disability was compensable also lacks merit. Compensable occupational diseases include "all diseases arising out of and in the course of employment, which are due in material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31. A claim for an alleged occupational disease must be filed "within 2 years after the date on which the claimant first knew the nature of the disability and its relation to the employment[.]" N.J.S.A. 34:15-34. "Knowledge of the nature of a disability includes knowledge that the injury is compensable. The definition of compensable occupational disease includes diseases due in a material degree to conditions characteristic of a particular place of employment." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quotations and citations omitted).

Petitioner knew in 1998, or in 2004 at the very latest, the nature and extent of her disability and that it was work-related. Accordingly, her petition, filed in 2007, was untimely.

For this same reason, we reject petitioner's contention that the statute of limitations did not accrue until the date of last exposure. Contrary to petitioner's viewpoint, the Court in Earl, supra, did not hold that the statute of limitations for an occupational disease claim is tolled once the exposure ends. Id. at 164. Rather, the Court noted that a claim petition will not be barred if filed after a period of exposure ends, as long as it is filed within two years of when he or she knew the nature of the disability and its relation to the employment. Id. at 161. The Court considered the petitioner's claim petition timely because despite when the period of exposure ended, she had filed her claim within two years of when she knew the nature of her disability and its relation to her employment. Id. at 164.

The facts in Earl are distinguishable from those here. There, the petitioner did not become aware of the extent of her disability until several years after her first exposure, and she did not know she had a permanent loss of pulmonary function until medical testing confirmed it. Id. at 160, 162. Here, petitioner was twice diagnosed with carpal tunnel syndrome in her right hand, the EMG/NCV study in 2004 confirmed this diagnosis, and petitioner knew in 1998, or in 2004 at the latest, that her disability was work-related. Thus, regardless of any continued exposure, petitioner's claim petition is time barred.

 
Affirmed.

(continued)

(continued)

9

A-0956-09T3