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Occupational psychiatric claims, like all occupational claims, must be filed within time or be subject to the statute of limitations defense. The challenge is always whether the employer can prove that the employee knew the nature of his condition and its relationship to work. That was the issue in Bender v. Township of North Bergen, A-1988-15T4 (App. Div. August 25, 2017) where the petitioner, a former police officer with 25 years of experience, filed an occupational psychiatric claim three years after he retired.
Officer Bender worked for the Township from 1979 to 2004 when he retired as a lieutenant. He testified that over the years he handled various gruesome assignments and suffered negative psychiatric consequences from his exposures. He consulted with Dr. Ausberto Mckinney, the police department’s physician, in 2002 before petitioner retired. Dr. Mckinney referred petitioner to a psychiatrist, Dr. Mercedes Rudelli, who began to see him on a continuous basis. Petitioner testified that the work stress was a factor in his retirement. However, petitioner did not report the condition to the Township, nor file a claim petition until 2007. At that point he filed an occupational psychiatric claim and an occupational orthopedic claim.
The Township made a motion to dismiss the case based on the two-year statute of limitations, which requires a claimant in an occupational claim to file within two years from when he knows the nature of the condition and its relationship to work. The Judge of Compensation ruled in favor of the Township, dismissing both claims. Petitioner appealed and argued that there was no showing that petitioner knew that his condition was work related until he filed the claim petition. Petitioner also argued that the Judge of Compensation did not adequately explain why he dismissed the orthopedic claims.
The Appellate Division affirmed the decision of the Judge of Compensation. First, the Court explained what is not sufficient for an employer to prevail on the occupational statute of limitations. “As this court has held, merely experiencing symptoms and receiving treatment for a work-related condition is not sufficient to trigger the statutory time limits.” The Court said that the petitioner “must have knowledge that the condition rises to the level of a permanent disability, since only permanent disability is compensable.”
Having said that, the Court found it pivotal that petitioner himself testified that he was aware as early as 2002 of the relationship between his psychological symptoms and his employment. That was why he was treating with a psychiatrist. Petitioner had also filed claims in the past for various injuries, and the Court noted that petitioner was familiar with the workers’ compensation process.
Petitioner made a clever attempt to argue that the Township was aware that he was treating with its physician, who referred petitioner to a psychiatrist, and therefore the Township was actually in effect providing workers’ compensation treatment through Dr. Rudelli, even though it was not being billed through workers’ compensation. He argued that the two-year statutory period should therefore be tolled. The Court did not buy that argument, stating that petitioner was well aware from filing prior workers’ compensation claims of the requirement to file a formal, written claim petition in a timely fashion.
Where the Appellate Division did agree with petitioner was that there was not sufficient rationale for a dismissal of the occupational claim petition. Petitioner argued that his orthopedic injuries were “insidiously progressive” and “did not manifest themselves until less than two years before the filing of the claim petition.” The Appellate Division remanded this part of the case for further proofs on the issue of the statute of limitations on the orthopedic claims.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.