A Capehart Scatchard Blog

Second Hand Smoke Cancer Claim Is Barred For Late Filing

In Pulejo v. Middlesex County Consumer Affairs, A-3133-14T4 (App. Div. July 14, 2016), the petitioner, an investigator for the County, alleged that he worked along side a chain smoker four to five hours per day, five days per week, from 1976 to 1997. Mr. Pulejo was diagnosed in 2000 with lung cancer and underwent a bilobectomy.  Mr. Pulejo did not file a workers’ compensation claim for years after his bilobectomy.  Before working for the County, Mr. Pulejo received an award of 10% permanent partial disability against Johnson and Johnson for chronic obstructive pulmonary disease (COPD).

In 2010, nine years after his lung cancer surgery, when petitioner was 84 years old, he ultimately filed an occupational disease claim petition in the Division of Workers’ Compensation alleging that his cancer had been caused by second hand smoke at work.  He said he himself had never smoked cigarettes, but he argued that the constant exposure to cigarette smoke caused his cancer to develop. In testimony at trial he admitted that he had engaged in conversations with his treating doctors about his cancer, and his oncologist had told him back in 2000 or 2001 that the likely cause of his cancer was cigarette smoke.  Petitioner also recalled telling his doctors at the time of his lung surgery that he had been exposed to second hand smoke at work.

The experts retained by the parties disagreed on the cause of petitioner’s lung cancer.  Petitioner’s expert said the cancer was work related due to second hand smoke, while respondent’s pulmonary doctor said there was no known cause.  Both parties submitted legal briefs without addressing the statute of limitations issue.  The trial judge, who is now the Chief Judge and Director of the Division, the Honorable Russell Wojtenko, asked for supplemental legal briefs addressing the occupational statute of limitations issue.  After receiving supplemental legal briefs, the judge dismissed the petitioner’s claim on the basis of N.J.S.A. 34:15-34.

This statute provides 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.”

The Judge of Compensation rejected petitioner’s argument that he did not know his lung cancer was work related until he was examined by his expert, Dr. Hermele, in 2012.  That made no sense since the claim petition alleging work-related cancer had been filed in 2010 two years before petitioner saw Dr. Hermele. Additionally, petitioner had spoken with his doctors in 2000-2001 regarding the link between smoking and lung cancer.  The Judge held that petitioner should have filed his claim petition no later than January 2003, two years after portions of his lung had been removed.

The Appellate Division affirmed the decision of the Judge of Compensation. The Court rejected the argument of petitioner that the defense waived the statute of limitations defense by not raising it until well after trial.  This was  a pivotal aspect of the case and addressed a central question:  can an employer waive the statute of limitations? The answer is no.  The Appellate Division ruled that the statute of limitations is jurisdictional.  The word “jurisdictional” means that filing a claim on time relates to the power of the Division of Workers’ Compensation to hear the claim.   If a claim is not filed on time, the Court has no power to hear it.  Even if the defense wants to waive the statute, it does not matter:  the court cannot hear an untimely filed claim.

The Appellate Division also agreed with the Judge of Compensation that petitioner could not switch the nature of his claim petition at trial to argue for the first time that that his COPD condition had been worsened as a result of working for the County.  Counsel for petitioner argued that even if the cancer claim is barred, his client ought to receive an award for aggravation of the prior COPD condition.  The Court noted that this was a new argument and that “Dr. Hermele (petitioner’s expert) never quantified the proportion of lung disability attributable to the exacerbation of Pulejo’s pre-existing COPD.”

This case is important for New Jersey practitioners because it focuses on a little understood provision of the law, namely the time limits for filing occupational disease claims.  New Jersey really has a “discovery” rule for filing an occupational disease claim petition, and it is focused on the knowledge of the claimant as to the nature of his or her illness and relationship to work.




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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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