ROBERT BENDER VS. TOWNSHIP OF NORTH BERGEN(DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1988-15T4

ROBERT BENDER,

Petitioner-Appellant,

v.

TOWNSHIP OF NORTH BERGEN,

Respondent-Respondent.
________________________________

Argued August 15, 2017 – Decided August 25, 2017

Before Judges Manahan and Gilson.

On appeal from Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2007-32225.

Donald F. Burke argued the cause for appellant
(Law Office of Donald F. Burke, attorneys; Mr.
Burke and Donald F. Burke, Jr., on the
briefs).

Ryan J. Gaffney argued the cause for
respondent (Chasan Lamparello Mallon &
Capuzzo, PC, attorneys; Cindy Nan Vogelman,
of counsel and on the brief; Qing H. Guo, on
the brief).

PER CURIAM

Petitioner Robert Bender appeals from an order entered by a

Workers' Compensation judge entering judgment in favor of the
Township of North Bergen (Township). After our review, we affirm

in part and remand for amplification of the judge's decision

concerning the orthopedic claim.

We discern the following facts taken from the record.

Petitioner was employed by the Township as a police officer.

Petitioner commenced his employment in 1979 and, after rising

through the ranks, retired as a lieutenant in 2004.

Petitioner filed a workers' compensation claim on October 4,

2007, for work-related psychiatric, orthopedic, and internal

injuries. The Township filed an answer to the petition on January

15, 2008, asserting the statute of limitations as a defense.

Horizon Blue Cross Blue Shield of New Jersey (Horizon) filed a

motion to intervene, which was granted on September 29, 2010.1

On January 29, 2014, the Township filed a motion to dismiss

for failure to comply with the statute of limitations regarding

petitioner's orthopedic injuries. Petitioner filed a reply

certification in opposition.

The Township filed a motion to dismiss for lack of prosecution

on February 28, 2014. In response, petitioner filed a cross-

motion to compel the Township to answer interrogatories, to produce

1
Horizon asserted a lien in the amount of $77,044.37, and argued
that if petitioner's injuries are deemed work related, the Township
should take over treatment and provide reimbursement to Horizon.

2 A-1988-15T4
records, and to preclude the Township from presenting proofs at

trial if the documents were not produced. On May 5, 2014, the

Township filed a motion to dismiss for failure to comply with the

statute of limitations regarding petitioner's remaining

psychiatric claims.

Petitioner filed a substitution of attorney on May 8, 2014.

On June 24, 2014, petitioner filed a supplemental report of

Mercedes N. Rudelli, M.D., dated June 19, 2014. The Township

submitted an addendum report of Kenneth J. Rubin, M.D., dated

October 23, 2014. On May 4, 2015, petitioner submitted an undated

psychiatric evaluation report completed by Vicki Forte, Ph.D.,

M.D.

A trial took place over three non-contiguous days in 2014 and

2015. During the trial, testimony was taken from petitioner, and,

on behalf of the Township, from Sergeant Alex Guzman, the liaison

between the police department and the Township's workers'

compensation carrier.

Petitioner testified about his exposure during his years as

a police officer to various gruesome assignments and trauma.

Petitioner further testified that in 2002, he began experiencing

negative psychiatric issues as a result of this exposure and

consulted Dr. Ausberto McKinney, the police department's

physician, who referred petitioner to psychiatrist Dr. Rudelli,

3 A-1988-15T4
who petitioner testified he was seeing "on a continuous basis ever

since and as frequently as [he] possibly could." Saliently,

petitioner testified that the stress associated with his

employment led him to retire. Despite suffering from what he

perceived to be an occupational related psychological condition,

petitioner did not report his condition nor file a claim until

five years later.

Concerning his claim of orthopedic injuries, petitioner

briefly described treatments he received to his knee, shoulder,

and neck after retiring in 2004, as well as his physical

limitations. Petitioner acknowledged that he filed three prior

workers' compensation claims and received prior awards for

permanent disability.

Guzman's testimony was limited. He testified regarding the

procedures for filing workers' compensation claims to the

Township's police department.

In a seven-page written opinion, the judge held petitioner

failed to file a petition within the two-year statute of

limitations. As such, the judge held the claim was barred.

Petitioner submitted a supplemental certification on December

1, 2015, for the purpose of "correcting mistaken factual inferences

[the judge] drew from the testimony" and requesting that the judge

"incorporate this sworn statement in a supplemental factual

4 A-1988-15T4
analysis before a final order is entered." By email dated December

10, 2015, the judge stated that "[u]pon review of petitioner's

attorney's correspondence . . ., there appears no need to settle

the record as petitioner's knowledge of a compensable recovery is

irrelevant and not a defense."

The judge entered an order of dismissal in favor of the

Township. This appeal followed.

Petitioner raises the following point on appeal:

POINT I

THE WORKERS' COMPENSATION COURT ERRED IN
DISMISSING THE PETITION ON STATUTE OF
LIMITATIONS GROUNDS.

[1.] The Workers' Compensation Act
is remedial social legislation and
should be given liberal
construction in order that its
beneficent purposes may be
accomplished.

[2.] Under established legal
principles, knowledge of the
"nature" of a disability includes
knowledge that the injury is
compensable.

[3.] Uncontradicted testimony
establishes that the petitioner did
not know he had a compensable claim
until 2007 when he filed his claim
petition.

[4.] The Sheffield2 Doctrine tolls
the statute of limitations because

2
Sheffield v. Schering Plough Corp., 146 N.J. 442 (1996).

5 A-1988-15T4
 the petitioner was ordered by the
Police Surgeon of North Bergen to
see Dr. Rudelli for treatment and he
did so up to the filing of his
workers' compensation claim and
continuing to the present.

[5.] The [w]orkers' [c]ompensation
[j]udge dismissed petitioner's
orthopedic occupational claims
without addressing why they were
barred.

The Division of Workers' Compensation "is deemed to have

primary jurisdiction to decide compensability issues[.]"

Kristiansen v. Morgan, 153 N.J. 298, 313 (1998), modified, 158

N.J. 681 (1999). An appellate court's scope of 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. Jersey City Fire Dep't, 175 N.J. 244, 262 (2003)

(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord

Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).

An appellate court may not substitute its own fact-finding

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

6 A-1988-15T4
inconsistent with competent relevant and reasonably credible

evidence as to offend the interests of justice.'" Lindquist,

supra, 175 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)); accord Rova Farms Resort v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974).

I.

We commence by addressing petitioner's argument that the

claim was not barred by the statute of limitations. N.J.S.A.

34:15-51 requires claimants to file a petition for workers'

compensation resulting from accidental injury on the job within

two years of the accident. Petitions based on occupational disease

are barred if they are not filed within two years of the date

plaintiff discovered the nature of the disability and its

relationship to employment. N.J.S.A. 34:15-34.

Unlike an accident, the precise onset of an occupational

disease may be difficult to ascertain. Earl v. Johnson & Johnson,

158 N.J. 155, 163-64 (1999); Peck v. Newark Morning Ledger Co.,

344 N.J. Super. 169, 185 (App. Div. 2001). As a result, "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." Peck, supra, 344 N.J. Super. at 184.

7 A-1988-15T4
For statute of limitations purposes, "'knowledge of the nature of

[the] disability' connotes knowledge of the most notable

characteristics of the disease, sufficient to bring home

substantial realization of its extent and seriousness." Earl,

supra, 158 N.J. at 163 (alteration in original) (quoting Bucuk v.

Edward A. Zusi Brass Foundry, 49 N.J. Super. 187, 212 (App. Div.),

certif. denied, 27 N.J. 398 (1958)).

Here, petitioner contends that he did not know he had a

compensable claim relating to his psychiatric injuries until he

filed the claim petition in 2007. 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.

Id. at 161-62. Rather, the statute requires actual knowledge of

the nature of a disability, the relation to the employment, and

that the injury is compensable. N.J.S.A. 34:15-34; Earl, supra,

158 N.J. at 161. In other words, the claimant must have knowledge

that the condition rises to the level of a permanent disability,

since only permanent disability is compensable. Earl, supra, 158

N.J. at 162-64. However, "[s]uch knowledge is immaterial in

ongoing exposures for which a petitioner can file within two years

from the last exposure." Id. at 167 (citation omitted).

After considering and weighing the testimony, the judge held

that petitioner "knew of the nature of the disability and its

8 A-1988-15T4
relation to the employment for compensable occupational disease;

[yet, he] failed to file a petition within [two] years after the

date on which [he] first knew the nature of the disability and its

relation to the employment."

In pertinent part, the judge found:

[p]etitioner admitted that he was fully aware
that work exposures were causing him distress
as early as 2002. In fact, petitioner
credibly testified that the stress level was
so egregious that he counted the days until
his retirement, declined a request to work an
additional four months, and forwent
significant additional income in a time and
leave retirement which he could have earned
had he remained employed.

As to petitioner's argument that the referral by Dr. McKinney

constituted adequate notice to the Township, the judge held "it

cannot be credibly argued that petitioner was not fully and

adequately aware of the written notice requirements for filing a

workers' compensation claim as he had done so in the past."

Given our review of the record and in consideration of our

standard of review, we discern no error in the judge's holding

that petitioner failed to file a timely claim relating to his

occupational disability. By his own testimony, petitioner was

aware as early as 2002 of the relationship between the

psychological symptoms he was experiencing and his employment. As

well, given his claim history, petitioner was very familiar with

9 A-1988-15T4
the compensation process. In sum, the record is clear that, in

advance of the expiration of the applicable statute of limitations,

petitioner knew the nature of his disability and its relationship

to his employment.

II.

We next address petitioner's argument that the judge failed

to properly evaluate the evidence. In terms of our deference to

decisions of a judge of compensation, we have held that "where the

focus of the dispute is not on credibility but, rather, alleged

error in the trial judge's evaluation of the underlying facts and

the implications to be drawn therefrom, our function broadens

somewhat." Manzo v. Amalgamated Indus. Union Local 76b, 241 N.J.

Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990).

In Manzo, we accepted the findings of fact by the workers'

compensation judge, but disagreed with the conclusions drawn from

those facts. Id. at 614. We will "appraise the record as if we

were deciding the matter at inception and make our own findings

and conclusions" only if the judge of compensation "went so wide

of the mark that a mistake must have been made." Id. at 609

(quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.

Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Here, petitioner challenges the judge's fact-findings in the

first instance; whether petitioner was aware he had a compensable

10 A-1988-15T4
claim and yet did not file a claim petition within the two-year

statute of limitations. Those findings required credibility

determinations, not the evaluation of established facts as in

Manzo. Despite the urging of petitioner on this score, we conclude

that our independent review of the judge's factual findings and

credibility determinations based on the trial proofs is

unwarranted. Even were we to conclude otherwise regarding our

scope of review, the judge's conclusions are not only not "wide

of the mark," they are, to the contrary, entirely consistent with

the trial record.

III.

Next, petitioner argues that the judge failed to adequately

analyze the petitioner's orthopedic claims. Workers' compensation

judges must furnish clear, complete, and articulate reasons

grounded in the evidence. See In re Vey, 124 N.J. 534, 543-44

(1991). "When the absence of particular findings hinders or

detracts from effective appellate review, the court may remand the

matter to the agency for a clearer statement of findings and later

reconsideration." Id. at 544. The Supreme Court long ago

emphasized the importance of this obligation with respect to

administrative agencies, stating:

It is axiomatic in this State . . . that an
administrative agency . . . must set forth
basic findings of fact, supported by the

11 A-1988-15T4
 evidence and supporting the ultimate
conclusions and final determination, for the
salutary purpose of informing the interested
parties and any reviewing tribunal of the
basis on which the final decision was reached
so that it may be readily determined whether
the result is sufficiently and soundly
grounded or derives from arbitrary, capricious
or extra-legal considerations.

[In re Application of Howard Sav. Inst., 32
N.J. 29, 52 (1960).]

In the instant matter, we are unable to determine from a

reading of the decision whether or on what basis the judge decided

the compensability of the orthopedic injuries claim. We note that

while petitioner's orthopedic injuries were documented during the

course of his employment, he contended that these injuries were

"insidiously progressive" and "did not manifest themselves until

less than two years before the filing of his claim petition in

2007." See Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225,

229 (2003) ("[I]n the narrow band of accident cases that result

in latent or insidiously progressive injury, the accident statute

of limitations does not begin to run until the worker knows or

should know that he has sustained a compensable injury."). Thus,

petitioner argues, and we agree, that there remain factual issues

12 A-1988-15T4
in dispute not addressed by the decision. We are therefore

constrained to remand this matter for resolution of those issues.3

On remand, the judge of compensation shall make

particularized findings and determine whether petitioner has filed

his claim regarding his orthopedic injuries within the appropriate

statute of limitations.

Affirmed in part and remanded in part for further proceedings

consistent with this opinion. We do not retain jurisdiction.

3
Relative to this issue, the Township argues that since the facts
in this matter are not in dispute, this court should exercise
original jurisdiction under Rule 2:10-5. While we may exercise
original jurisdiction as "necessary to the complete determination
of any matter" we review, Rule 2:10-5, we rarely do so if issues
of witness credibility are involved, or if the expertise of the
agency may be relevant. Pressler & Verniero, Current N.J. Court
Rules, comment on R. 2:10-5 (2017). In light of the record before
us and the expertise involved with a judge of compensation, we
discern no basis to exercise original jurisdiction.

13 A-1988-15T4