FRANK PULEJO, JR - v. MIDDLESEX COUNTY CONSUMER AFFAIRS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK PULEJO, JR.,

Petitioner-Appellant,

v.

MIDDLESEX COUNTY

CONSUMER AFFAIRS,

Respondent-Respondent.

_________________________________________

July 14, 2016

Argued May 31, 2016 Decided

Before Judges Messano and Simonelli.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-10115.

Allan L. Lockspeiser argued the cause for appellant (Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser, P.A., attorneys; Mr. Lockspeiser, on the brief).

Nicole M. Downs argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Ms. Downs and Richard J. Mirra, on the brief).

PER CURIAM

Following military service during and immediately following World War II, petitioner Frank Pulejo, Jr. worked for Johnson & Johnson as a machine operator and supervisor. He developed chronic obstructive pulmonary disease (COPD), filed a workers' compensation petition and secured a judgement of ten percent of partial total disability based on the functional loss to his lungs. In 1976, Pulejo became employed by Middlesex County (the County) and worked as an investigator assigned to its Consumer Affairs office from 1976 to 1997.

In 2000, Pulejo was diagnosed with lung cancer and, on January 11, 2001, he underwent a bilobectomy, which removed the upper and middle lobes of his right lung. He continued to be monitored for potential recurrence.

In April 2010, when he was eighty-four years of age, Pulejo filed another petition with the Division of Workers' Compensation alleging that his lung cancer was the result of occupational exposure to second hand cigarette smoke during his employment with the County. The County filed its answer, and the matter was tried before the workers' compensation judge (WCJ) on three non-consecutive days between November 2012 and March 2013.

Pulejo, who claimed he had never smoked, testified that during his employment with the County, he sat in close proximity to a fellow worker who was "chain smoking" four to five hours per day, five days per week. Although his testimony regarding the onset of his cancer and conversations he had with his treating doctors was inexact, Pulejo acknowledged that his oncologist told him it was "[m]ost likely [caused by] cigarette smoke and whatever." He also acknowledged telling another treating doctor that he was exposed to secondhand smoke at work.

Both sides produced medical experts at trial. Pulejo's expert, Dr. Malcolm Hermele, first examined Pulejo on January 30, 2012, in preparation for the litigation. Dr. Hermele opined that Pulejo suffered a sixty-five percent total disability of his lung function from "a combination of his lung conditions," which included COPD, "restrictive lung disease," caused by the cancer, and "small airway disease." Dr. Hermele further opined that Pulejo's "inhalation of secondary smoke participated to a material degree [in] the causation of his lung cancer."

The County's expert, Dr. Adam J. Rowen, opined that Pulejo's pulmonary disability was only one percent of partial total. Rowen could not state with any degree of medical certainty what caused the development of Pulejo's lung cancer, noting a variety of non-work related factors that could have caused the condition.

The parties filed initial trial briefs after the testimony concluded. Apparently, the WCJ requested further briefing on whether Pulejo's petition was barred by the applicable statute of limitations (SOL) for occupational exposures, N.J.S.A. 34:15-34, which provides

[T]here 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 . . . within [two] years after the date on which the claimant first knew the nature of the disability and its relation to the employment.

[Ibid. (emphasis added).]

The parties responded with supplemental briefs on the issue.

On February 11, 2015, in a comprehensive written decision, the WCJ first noted that N.J.S.A. 34:15-31(a) "defines and limits compensable occupational diseases which arise out of and in the course of employment to those 'which are due in material degree to causes and conditions which are or were characteristic of or peculiar to a particular . . . place of employment.'" The WCJ cited our opinion in Magaw v. Middletown Board of Education, 323 N.J. Super. 1 (App. Div.), certif. denied, 162 N.J. 485 (1999), as recognizing the appropriateness of an "award[] to an employee who developed cancer, arising out of and in the course of his employment, after being subjected to secondhand cigarette smoke by a co-worker for over [twenty-six] years . . . ." After carefully considering the burden of proof and the testimony at trial, the WCJ concluded

Based upon the testimony of the witnesses, coupled [with] the demonstrable objective medical evidence . . . and the overwhelming consensus of the scientific community at large, this [c]ourt finds that the [p]etitioner has proved by a preponderance of the evidence that his environmental exposure to secondhand cigarette smoke while working for the . . . County . . . was a substantial contributing cause of his lung cancer and aggravation of his pre-existing COPD . . . .

The WCJ found that Pulejo proved "all the elements of [his] claim, except for one crucial element, that the [p]etitioner filed his claim within the [s]tatute of [l]imitations."

Since the County "never raised the [SOL] during the pendency of th[e] matter," the WCJ noted that in another forum, the "defense would probably be waived." However, he held that "the [SOL] is not a defense in workers' compensation cases. Rather, the timely filing of a workers' compensation claim is 'jurisdictional and cannot be waived.'" (Quoting Baijnath v. Eagle Plywood & Door Mfrs., 261 N.J. Super. 309, 314 (App. Div. 1993) (citing Riccioni v. Am. Cyanamid Co., 23 N.J. Super. 465, 470-471 (Law Div. 1952), aff'd, 26 N.J. Super. 1 (App. Div.), certif. denied, 13 N.J. 289 (1953); Bocchino v. Best Foods, Inc., 16 N.J. Super. 154, 157 (Law Div. 1951)).

Noting that "the precise onset of an occupational disease may be difficult to ascertain," the WCJ applied the well-recognized "discovery rule." See, e.g., Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 252 (2003) ("Because the Workers' Compensation Act does not contemplate notice or the filing of a claim in the absence of injury, those time periods do not begin to run until the worker is, or reasonably should be, aware that he has sustained a compensable injury."); see also Peck v. Newark Morning Ledger Co., 344 N.J. Super. 169, 184 (App. Div. 2001) (citing Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999)) ("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.")

The WCJ rejected Pulejo's claim that he was unaware his lung cancer was related to exposure to secondhand smoke at the County's offices until he was examined by Dr. Hermele in 2012. The judge correctly noted that the claim petition was itself filed in 2010.

Citing Pulejo's trial testimony and medical history, the WCJ concluded that petitioner "had actual knowledge or at the very least should have known 'by the exercise of reasonable diligence and intelligence' that his lung condition may have been caused by his occupational exposure to secondhand cigarette smoke." The WCJ held that Pulejo was required to have filed his petition no later than January 2003, two years after the removal of portions of his lung resulting from lung cancer. The WCJ filed a conforming order dismissing the petition, and this appeal followed.

The WCJ subsequently filed a supplemental statement of reasons pursuant to Rule 2:5-1(b). He noted that, even though there were proofs adduced at trial, the petition never included a claim for aggravation of Pulejo's pre-existing COPD. As a result, the WCJ concluded that claim was "not before th[e] [c]ourt and therefore [was] not considered in the final determination of the [s]tatute of [l]imitations issue."

Pulejo argues in a single point that the WCJ "clearly erred" by applying the statute of limitations to bar his occupational exposure claim. He contends that the WCJ ignored the remedial purposes of the Workers' Compensation Act that compel its liberal interpretation to provide the broadest coverage of compensable claims, that the County waived the SOL defense, that the judge held Pulejo to a higher standard of knowledge regarding causation of his cancer, particularly since Dr. Rowen refused to opine that the condition was caused by secondhand smoke, and that the WCJ cherry-picked brief portions of Pulejo's trial testimony to support the finding of constructive knowledge.

We note that

[i]n 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)). Moreover, we give due regard to the special expertise of the WCJ. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004). However, we do not defer to the WCJ's interpretation of the law. Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009).

Here, the decision of the WCJ was "supported by sufficient credible evidence on the record as a whole," and we affirm substantially for the reasons set forth in the judge's written decision. R. 2:11-3(e)(1)(D). We also agree with the legal conclusion reached by the WCJ. The timely filing of the petition is a jurisdictional prerequisite that is never waived. Baijnath, supra, 261 N.J. Super. at 314.

Further, the petition was limited to whether Pulejo's lung cancer was a compensable injury. His answers to interrogatories stated the claim was for "[p]ulmonary problems and lung cancer," without any mention of his pre-existing COPD. In a single sentence in his brief, Pulejo now argues that "[e]ven if the [p]etitioner does not receive a workers' compensation award for his lung cancer[,] the [WCJ] should have given [him] an award for [COPD] which is separate from the lung cancer." He provides no legal argument for this proposition, and we could justifiably refuse its consideration. See, e.g., Mid-Atl. Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.) (refusing to consider legal argument raised by appellant in conclusory fashion), certif. denied, 207 N.J. 190 (2011). It suffices to say that Dr. Hermele never quantified the proportion of lung disability attributable to the exacerbation of Pulejo's pre-existing COPD.

Affirmed.