ANTHONY RUSSO - v. HOBOKEN BOARD OF EDUCATION -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1861-10T4

ANTHONY RUSSO,

Petitioner-Appellant,

v.

HOBOKEN BOARD OF EDUCATION,

Respondent-Respondent.

_____________________________________________________

November 29, 2011

Argued September 27, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claims Petition No. 2004-5705.

Danielle S. Chandonnet argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Ms. Chandonnet, on the brief).

Michael J. Dillon argued the cause for respondent (Krumholz, Dillon, P.A. and Lago & O'Toole, LLC, attorneys; Mr. Dillon, on the brief).

PER CURIAM

Petitioner, Anthony Russo, appeals from the October 29, 2010 order of the Department of Labor and Workforce Development, Division of Workers' Compensation, dismissing his petition for benefits with prejudice. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

On February 24, 2004, Russo filed a petition for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, against his employer, the Hoboken Board of Education (the Board). He alleged "[p]ulmonary and related" injuries caused by "[e]xposure to asbestos . . . dust and dirt" while at work between "1990 [and] 6/30/93."1 In its answers to the original and amended petitions, the Board reserved "all statutory defenses." Discovery was subsequently exchanged.

Russo testified on July 16 and August 6, 2010. During cross-examination, the Board moved to dismiss the petition as time-barred. The workers' compensation judge (WCJ) decided to "hold the motion . . . in abeyance" and permitted Russo to complete his testimony.

Russo testified that he taught at several schools during his years of employment with the Board: the Daniel S. Keeley School (Keeley), from 1971 to 1985; the Connors School (Connors), from 1985 to 1986; and Hoboken High School (Hoboken High), from 1986 to 1993.2 Russo identified possible exposure to asbestos at all three schools, noting that each underwent an asbestos remediation program during his tenure.

Russo particularly recalled the remediation program at Hoboken High, which he believed occurred for a year sometime in the early 1990s. The remediation efforts required the replacement of all ceiling tiles in the building and the removal of all dust. The program was carried out during school hours.

Russo also believed he was exposed to asbestos while at Connors. He could not recall any specific incidents but believed it may have occurred while eating lunch in the basement with other teachers. At Keeley, the remediation program lasted more than a year and included the removal of asbestos from various parts of the school including the ceiling and piping in the basement.

On cross-examination, Russo acknowledged that from early in his teaching career, he was aware "[asbestos] had harmful effects, including lung disease." Russo referenced a general "buzz going around the building" regarding the workers wearing "spaceman outfits" to conduct the remediation program. He admitted that he was concerned for his health, as well as that of the "students and teachers." He objected to the program at public meetings of the Board:

Q: And you objected because you thought it was potentially harmful, what you were being exposed to?

A: No, not just what I was being exposed to, what the students were being exposed to and the other teachers.

Q: What everybody was being exposed to?

A: Exactly.

Q: Because you thought it was potentially harmful?

A: I thought it was probably harmful.

Q: Probably harmful?

A: Uh-huh.

When he left his employment with the Board in 1993, Russo claimed he had no known health problems. He had been a cigarette smoker since the early 1960s. In March 2000, he was diagnosed with a metastatic brain tumor and underwent surgery to remove the tumor.3 The surgery was followed by a regimen of "[b]oth radiation and chemotherapy." Approximately three months after the brain surgery, a cancerous upper lobe of his lung was removed and further radiation and chemotherapy followed.

Although it is unclear exactly when, Russo was diagnosed with adenocarcinoma with the primary tumor site being in his lung.4 In 2001 or 2002, the cancer returned to his brain and he underwent Gamma knife surgery, a procedure that focused radiation on the tumor site. In 2003, his left adrenal gland was removed when doctors discovered the cancer had spread. In conjunction with these surgeries, until sometime in 2005, Russo received various chemotherapy and radiology treatments. At the time of his testimony, his condition continued to require periodic MRI scans.

Russo conceded that his oncologists likely inquired about his employment history and potential exposure to harmful materials before these surgeries and during these treatments, but he did not think the questions were important. When pressed on his lack of curiosity, Russo responded, "I was just sick." He testified that none of his doctors expressed an opinion that his cancer was caused by exposure to asbestos.

At the conclusion of Russo's testimony, the WCJ ordered the parties to submit briefs regarding the Board's motion to dismiss. The judge heard oral argument on October 29, 2010, and issued her oral decision thereafter.

"Assuming . . . facts most favorable to [Russo]," the WCJ found that "[t]here was no medical treatment or evidence of a condition until . . . Russo was diagnosed with cancer in 2000," and "[t]here w[ere] definite indi[c]ia of permanent los[s] of function after he underwent his initial brain operation in March of 2000." In addition, the WCJ found that Russo knew as early as the 1970s of the harmful effects of asbestos exposure. She further noted that Russo was "a well educated gentleman, with greater than a Master's degree."

The WCJ observed that "a claim must be filed within two years after the date in which the claimant first knew the nature of the disability and its relation to the employment." After reviewing pertinent case law, the WCJ concluded that "[p]etitioner admitt[ed] knowledge of potential harmful effects of asbestos during the r[emediation] projects in the 1980s, and he had permanent los[s] of bodily function in 2000 and 2001." Therefore, she concluded Russo's "claim petition filed . . . on February 23, 2004, [wa]s time barred." This appeal followed.

Before us, Russo essentially contends that because "[m]edical knowledge cannot be imputed" to him, his petition was timely filed within two years of learning his condition could be related to his employment. Russo also argues that the real issue raised by the Board was "causation," consideration of which required further testimony and expert opinion.

We state some principles that guide our review. Generally, administrative determinations are given "substantial deference." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R&R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). "In workers' compensation cases, the scope of appellate review 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.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003)(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "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.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 104 N.J. 277 (1995)).

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

[T]here shall be no time limitation upon the filing of claims for compensation for compensable occupational disease, . . . 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 . . . 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.

"'[C]ompensable occupational disease' . . . include[s] all diseases arising out of and in the course of employment, which are due in a 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). "Knowledge of the 'nature' of a disability includes knowledge that the injury is compensable." Earl, supra, 158 N.J. at 161.

"Because of the pernicious nature of occupational diseases, the Legislature has been solicitous of workers who suffer from these ailments." Id. at 166. Nonetheless, timely filing of the petition is a jurisdictional prerequisite. See id. at 161.

Here, the WCJ expressly found that Russo knew he had suffered a permanent loss of function in 2000 when he first had a cancerous tumor removed from his brain, or, shortly thereafter, when he had a cancerous tumor removed from his lungs. As we understand the argument, however, Russo claims he was not aware that his condition was related to his employment, particularly, his exposure to asbestos, and, hence, compensable. In this regard, he notes that the Board has consistently neither admitted nor denied that he was exposed. Russo thus argues that his personal lack of medical knowledge regarding the cause of his cancer cannot serve as a basis to dismiss the petition as time-barred.

However, in considering the discovery rule in another context, the Court has said, "We impute discovery if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim; medical or legal certainty is not required." Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000). Only "some reasonable medical support," not "medical confirmation," is required. Id. at 557 (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 437 (1987)) (internal quotation marks omitted).

In this regard, based upon Russo's testimony, the WCJ found that he knew asbestos could cause lung disease and other medical problems as early as "the 70s." She noted that Russo "made complaints about the exposures to harmful substances . . . while still teaching." The WCJ further found that Russo "was well aware of the potential harmful effects of asbestos exposure," and she rejected his claim that the petition was not time-barred "because he was never informed by any of his treating physicians that his cancer was related to this exposure."

We accord substantial deference to both the factual findings and legal determinations made by the WCJ "unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist, supra, 175 N.J. at 262 (citation and internal quotation marks omitted). In this case, the findings and conclusions of the WCJ were amply supported by the record.

In light of our holding, we need not address Russo's other arguments regarding the need for expert testimony as to causation. We only add that there is no requirement that the WCJ consider expert testimony before granting a motion to dismiss based on the statute of limitations. See N.J.A.C. 12:235-3.5(c)("motions shall be disposed of on the papers, unless a Judge of Compensation directs oral argument or further proceedings").

Affirmed.

1 Russo filed an amended petition on May 9, 2005, alleging the same injuries and dates of exposure, but noting the Board was "[s]elf-[i]nsured."

2 He also worked for some time during the early 1980s at the North Bergen Vocational School. Additionally, Russo testified that he took a leave of absence after winning the Hoboken Mayoral Election in 1993. He returned to work briefly at the Demarest School in 2002, after losing a re-election bid.

3 Much of the specific medical history we recite is found in medical reports contained in appellant's appendix. It is unclear from the record whether these were supplied to the WCJ. Our references are limited, therefore, so as to place appellant's testimony in the proper temporal context.

4 "Adenocarcinoma" is "[a] malignant neoplasm of epithelial cells in [a] glandular or glandlike pattern." Stedman's Medical Dictionary 24 (26th Ed. 1995).