KENNETH H. ADER, JR - v. LEBANON TOWNSHIP -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0383-11T2

KENNETH H. ADER, JR.,

Petitioner-Appellant,

v.

LEBANON TOWNSHIP,

Respondent-Respondent.

__________________________________

March 11, 2013

Argued March 28, 2012 - Decided

Before Judges Fuentes, Graves, and Haas.

On appeal from the New Jersey Department of

Labor, Division of Workers' Compensation,

No. 2010-7078.

Kenneth W. Thomas argued the cause for appellant

(Lanza & Lanza, LLP, attorneys; John R. Lanza, of

counsel; Mr. Thomas, on the brief).

Cynthia R. Richards argued the cause for

respondent (Gebhardt & Kiefer, P.C., attorneys;

Ms. Richards, on the brief).

PER CURIAM

In this workers' compensation case, Kenneth H. Ader appeals from the order of the Judge of Compensation dismissing his petition to receive compensation for injuries allegedly sustained while performing his duties as a volunteer emergency medical technician (EMT) for the Township of Lebanon (Township). The court of compensation found that appellant did not give timely notice of the incident to his employer as required under N.J.S.A. 34:15-17. We agree and affirm.

I

The work-related incident from which appellant seeks compensation occurred on November 18, 2008. According to appellant, on that date, he was the captain1 of the rescue squad who responded to a "one-car" motor vehicle accident resulting in "minor injuries." When he arrived, the car involved "was already on a rollback tow truck."2 The bed, or flat surface where the towed vehicle is placed, was approximately "3 and a half, [or] 4 feet" high, measuring from the roadway. At one point, appellant decided to climb onto the flatbed to inspect the car and look "for evidence of any impact between the interior of the vehicle and a passenger or driver." He climbed on the flatbed by stepping "onto the rear tire of the vehicle and then up onto the deck."

At the time of this incident, appellant was 42 years old, six feet, one and one-quarter inches tall, and weighed 325 pounds. Appellant was allegedly injured when he "squatted and jumped off" the flatbed, landing on both feet. He immediately felt some pain in his back in the area where he had previously had surgery.3

Appellant did not notify anyone associated with the Township of this incident, however, until February 2010. N.J.S.A. 34:15-17 requires an employee seeking compensation to notify his employer of injuries sustained in a work-related accident within a maximum period of ninety days. Relying on this statute, the Judge of Compensation dismissed appellant's petition as untimely.

On appeal, appellant argues that the court of compensation erred by failing to consider that the delay in seeking compensation was due to his unawareness of a causal link between the accident and the injuries he sustained. Under these circumstances, appellant argues, the court of compensation should have construed N.J.S.A. 34:15-17 liberally in his favor and tolled the running of the statute until February 2010, when his physician first informed him that his injuries were related to the November 2008 incident.

The Township maintains that the record does not support appellant's position. According to the Township, the Judge of Compensation correctly found that appellant informed his primary care physician that the November 18, 2008 incident may have been a possible cause of the pain he was feeling in his hip as early as January 2009 - - well within the statute's ninety-day notice requirement. The Township also argues that the cases relied on by appellant, in which our Supreme Court permitted compensation petitions to go forward despite having been filed more than two years after the work-related incident, are distinguishable from this case. In those cases, the employee gave actual notice to the employer on the date of, or shortly after the incident, despite the absence of definitive medical evidence establishing a causal link. Stated differently, the Township argues that a specific medical connection between the work-related event and the injury is not required to trigger the notice requirement under N.J.S.A. 34:15-17.

The Judge of Compensation agreed with the Township's position and dismissed appellant's petition as untimely. The Judge of Compensation found that appellant began experiencing pain in his right hip approximately two weeks after November 18, 2008, the date he jumped from the flatbed tow truck. He felt pain in his left hip begin two days after he noticed the discomfort with his right hip. The over-the-counter pain relief medication he took was ineffective and he decided to see his longtime primary care physician on December 16, 2008.

Despite the apparent temporal connection between the incident and the pain, the Judge of Compensation found that appellant did not mention the November 18, 2008 incident to his primary care physician until a second consultation with the doctor to review x-rays. This second visit occurred in January 2009. According to the Judge of Compensation, the results of this second consultation gave appellant sufficient information to trigger the notice requirements under N.J.S.A. 34:15-17:

Quite simply, it would have been sufficient for this petitioner, an experienced member of the volunteer squad and indeed the Captain at the time of the incident, to have reported the November 2008 incident to the Township around the time of his second visit to Dr. McGowan [his primary care physician]. It was during that visit that the petitioner himself related his injury to the incident involving the tow truck. In fact, he testified that he told Dr. McGowan that, "the only thing that had enough force to cause an injury was the tow truck."

The record shows, however, that after this second consultation, the primary care physician diagnosed appellant as suffering from arthritis and began treating him accordingly. When the arthritis treatment proved ineffective,4 his primary care doctor referred appellant to Dr. Patrick Collalto, an orthopedic surgeon.

Appellant first met with Dr. Collalto on October 2, 2009. Unlike his alleged failure to inform his primary care physician when he first visited him just two weeks after the incident, appellant immediately informed Dr. Collalto of the November 18, 2008 incident during his first visit with him. Dr. Collalto ordered a magnetic resonance imaging (MRI) scan of appellant's hips; after reviewing the results of the MRI, Dr. Colalto diagnosed appellant as suffering from avascular necrosis (AVN), a disease that causes temporary or permanent loss of blood to the bones, which may cause bones to collapse and die.

Dr. Collalto recommended bilateral hip replacement surgery, which occurred on January 11, 2010, and July 6, 2010. Dr. Collalto summarized his post-surgical condition in a letter to appellant's counsel dated July 8, 2010. Relevant to the issues raised in this appeal, Dr. Collalto gave the following summary of appellant's condition during his visit:

Patient is a 40 year old male that treated in our office for a hip problem. Patient had been previously treated by myself for a lower back condition. He was also seen in our office for a thumb condition. Past medical history indicates other than orthopedic problems; the patient is in general in decent health. The patient was evaluated for bilateral hip pain in October 2009. Patient [indicated] that he has had a hip pain since December 2008, and that the pain began shortly after he jumped off a "wrecker". This injury occurred on November 18, 2008, while he was working. He had significant pain when I initially evaluated him [on October 2, 2009,] and severe difficulty walking.

[(Emphasis added).]

According to the Judge of Compensation, appellant testified that, during his January 2009 visit with his primary care physician, he told the doctor that the November 18, 2008 incident with the tow truck was "'the only thing that had enough force to cause an injury.'" Although he related this information to his doctor within the ninety-day statutory window, the Judge of Compensation noted that appellant "did not notify the Township until approximately one year later."

II

Against this backdrop, and mindful of our standard of review, we affirm. We discern no legal basis to disturb the Judge of Compensation's factual findings and conclusions of law. As a general proposition, we are required to give "'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Marketing, L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). When reviewing the decision of a Workers' Compensation Court,

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. 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. Jersey City Fire Dep't, 175 N.J. 244, 262-63 (2003) (internal citations and quotation marks omitted).]

In Brunell v. Wildwood Crest Police Department, 176 N.J. 225, 229 (2003), the Court addressed "the issue of whether Post Traumatic Stress Disorder (PTSD) is an 'accidental injury' or an 'occupational disease' under the workers' compensation statute." In dealing with this complex question, the Court reaffirmed the need to adhere to certain readily ascertainable statutory standards in the area of claims for compensation based on a work-related accident. Id. at 236-39. With respect to injuries caused by accidents in the work place, the Court in Brunell held that the employee's reporting requirement is triggered at "the point at which a reasonable person would know he had sustained a compensable injury." Id. at 262.

Here, the record supports the findings of the Judge of Compensation that a reasonable person facing appellant's circumstances would have been aware that he sustained a work-related compensable injury on November 18, 2008. After all, it cannot be overlooked that appellant had been with the squad for twenty-nine years, and had held the high supervisory rank of captain for eight years prior to the date of the incident. He also had multiple consultations with physicians of his choice. His failure to give timely notice to his employer under these circumstances is legally untenable. We thus affirm substantially for the reasons expressed by the Judge of Compensation in his letter opinion of August 18, 2011. R. 2:11-3(e)(1)(D). The remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

A

1 At the time of the incident, appellant had been with the Township squad for twenty-nine years and had served as its captain for eight years. As captain, he "was responsible for the overall operation of the squad as pertain[ing] to running squad calls." According to appellant, the squad functioned independent of the Township's governing body. As captain, he did not report to any Township official concerning his duties.

2 Appellant described "a rollback tow truck" as "a flatbed where the bed rolls off the back and tilts so the car can be pulled up onto it."

3 Appellant had back surgery sometime in 2002 or 2003 to correct an undisclosed injury to a "disc between lumbar four and lumbar five." As far as he was concerned, the surgery was successful, and he had been completely asymptomatic prior to the November 18, 2008 incident.

4 The primary care doctor treated appellant for arthritis from approximately December 2008 to October 2009. According to appellant, during this time period, the pain in his hips became so intense that it interfered with his primary job as a school bus driver. As the pain intensified, he was also unable to fulfill his teaching responsibilities to other bus drivers.