Jacobs, Schwalbe & Petruzzelli, P.C.
Assisting New Jersey Clients Since 1977
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1. Establishing Stress Claims

N.J.S.A. 34:15-30 provides that an employer is responsible for an occupational disease resulting in injury or death to an employee. This section does not differentiate between an occupational disease as a result of an exposure to deleterious substances or cumulative trauma. This Section contains an exception if the injury or death by occupational disease is caused by willful, self-exposure to a known hazard or the employee's willful failure to make use of reasonable and proper guards or personal protective devices furnished by the employer. However, the exception is an affirmative defense that must be proven by the employer who must show that use of protective devices is a requirement of the employment and the employer properly documents that despite repeated warnings, the employee has willfully failed to use the devices. This exception does not apply to emergent situations, though emergent circumstances often suggest a traumatic event and one that does not occur over time. Most occupational claims are for exposures to circumstances or stressors that occur over time.

N.J.S.A. 34:15-31 defines a compensable occupational disease to include all diseases arising out of and in the course of employment which are due in material degree to causes and conditions characteristic of a particular trade, occupation, or place of employment. Deterioration of tissue, organs, or other body parts due to the natural aging process is not compensable. N.J.S.A. 34:15-34 provides that there is a two year statute of limitations based upon when the claimant first knew the disability and its relationship to employment or within two years after the employer has failed to make payment pursuant to an agreement of compensation. The workers' compensation statute does not make a distinction between occupational diseases that are orthopedic in nature and those that are not. However, in order to be compensable, occupational diseases arising out of the claimant's employment must not be ordinary diseases of life experienced by the general public, but rather those "which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A.34:15-31. If the stress encountered on the job is specific to the type of employment, the medical evidence must establish a causal nexus between that stress and the resultant physical and/or psychiatric disability. A disease caused by the combination of the employee's particular physical system, including possible preexisting conditions, with the work place environment may constitute a compensable occupational disease if petitioner can show that the stress encountered in the workplace was a contributing factor to the petitioner's overall condition.

If the employment inherently involves exposures to hazardous substances, fumes, dust, or other conditions, it will be easier to demonstrate the resulting disease as occupational in nature.

2. Proving Compensability

To recover for an occupational disease, a petitioner must show the work exposed him to greater risk than those present in daily life. In Fiore v. Consolidated Freightways, 140 N.J. 452 (1995), the Court held that in order to prevail on an occupational cardiovascular claim, the petitioner must prove that: (1) to a material degree, the disease arises out of the workplace and is characteristic of, or peculiar to, a particular trade, occupation, process, or place of employment, (2) the work exposure exceeds the exposure caused by the petitioner's personal risk factors, and (3) the employment substantially contributed to the development of the disease.

When analyzing occupational stress claims, it is important to review the entire medical history of claimant to identify when the initial diagnosis of anything related to a work connected stress claim became apparent. Claims must be filed within the appropriate statute of limitations, pursuant to N.J.S.A 34:15-34. Where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease (with limited exceptions) 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. It is also important to review prior medical records if claimant's occupational injury is superimposed upon a pre-existing injury to the same body part or parts which are the basis of the claim.

If petitioner's claim involves an unusual mechanism of injury or is an occupational claim, it is extremely important to get as much detail as to what the petitioner's job duties were. In Magaw v. Middletown Board of Education, 323 N.J. Super. 1, (App. Div. 1999), a schoolteacher established, through competent medical evidence, a nexus between occupational disease of tonsil cancer and his place of employment because he shared a room with a smoker for many years. Claimant proved by suitable medical evidence that second-hand smoke contributed to his tonsil cancer.

As with all Workers' Compensation cases that are not resolved by way of settlement, it will be the verdict of the judge of compensation that will determine whether or not petitioner has established a compensable occupational claim. The direct examination of petitioner's medical expert should set forth the medical hypothesis for the entire case. It is important to remember that the scientific theory of causation, underlying the doctor's hypothesis, if founded on some methodology, does not have to be generally accepted to be found sufficiently reliable and can be based on medical studies. Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003). A scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately founded, scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. Rubanick v. Witco Chem. Corp., 125 N.J. 421, (1991).

With respect to occupational stress claims involving orthopedic injuries, the Courts have distinguished between a traumatic singular event and repeated exposures to orthopedic injury. A petitioner may suffer a traumatic injury and return to work only to have their condition become more symptomatic. The Courts have to determine whether responsibility for the overall condition rests with the traumatic claim or the occupational exposure. There are a series of cases which fix the liability for the overall orthopedic condition on the specific accident rather than an occupational exposure although each case is subject to their particular proofs. There have been certain statutory exceptions to the general proof requirements regarding occupational claims. N.J.S.A.34:15-43.2 provides that in the case of firemen it will be a rebuttable presumption that any disease of the respiratory system shall be compensable unless the employer provides satisfactory proof to the contrary, provided the disease becomes manifest within 90 days from the last exposure claimed to have caused the disease. A similar presumption with respect to firemen applies to cardiac injuries. N.J.S.A. 34:15-7.3.

3. Benefits Available for Stress Claims

The benefits available to an injured worker for any occupational stress claims are the same, regardless of whether they are physical or psychiatric in nature. The limiting factor is the extent of the permanent partial disability and/or the petitioner's wage and the statutory maximum and minimum rates in permanent partial disability and permanent total disability awards.

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