On appeal from State of New Jersey, Department of Labor, Division of Workers Compensation, C.P. 97-014020 and C.P. 97- 014033.
Before Judges Petrella, Kestin and Alley.
The opinion of the court was delivered by: Petrella, P.J.A.D.
As amended January 9, 2002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2001
Petitioner Joseph Peck was awarded permanent disability by the Division of Workers' Compensation for a carpal tunnel condition of his left and right hands as a result of conditions he was exposed to from working as a mailer for the Newark Morning Ledger Company (Ledger).
On April 18, 1997, Peck filed two claim petitions with the Division of Workers' Compensation, alleging that he suffers from carpal tunnel syndrome of the right and left hands, and related orthopedic, neurological, and neuropsychiatric disabilities as a result of the constant use of his hands while employed by Ledger. After answering the claim petitions, Ledger moved to dismiss them. The Judge of Compensation heard testimony in connection with the motion from four witnesses and received written submissions from the parties and the Uninsured Employers Fund. The Judge of Compensation then denied Ledger's motion to dismiss in a March 13, 2000 order and written decision.*fn1 The Compensation Judge thereafter entered judgment in favor of Peck on both of his claim petitions, awarding him a permanent disability award of 17 1/4% of the right hand and 20% of the left hand. Ledger appealed from the final judgment.
Ledger argues on appeal: (1) its Article I election notice complied with the Workers' Compensation Act (Act); (2) the Article I election was timely; and (3) there was no violation of public policy. Ledger also asserts that it was adequately insured pursuant to the requirements of N.J.S.A. 34:15-72.
Petitioner Joseph Peck was employed as a mailer for The Star-Ledger newspaper, a publication of Ledger, since December 25, 1976. He testified that he became a full-time employee with full benefits in or about 1979. In December 1995, after months of pain and numbness in his hands, Peck was examined by Dr. Nenna, an orthopaedist, who opined that Peck was suffering from bilateral carpal tunnel syndrome and recommended surgery. Peck underwent surgery for his left and right hands in 1996 and 1997, respectively. The parties agree that the medical treatment rendered to Peck was reasonable and necessary for his carpal tunnel condition.
Peck testified that he first signed a waiver document*fn2 on September 26, 1984, and that it was his understanding that if he did not sign the waiver, his employment with the company would be terminated. Peck testified that he was subsequently asked to sign another waiver because he was told that the company lost the first one.*fn3 He was under the impression, based upon discussions with his co-workers and the union president, that the waivers were only a bar to hearing disability claims. Peck is unsure whether he signed the second waiver before or after the onset of symptoms of his carpal tunnel condition. Beginning around 1979, the Article I election notice was also incorporated in Section 15 of the collective bargaining agreement between Ledger and its employees represented by the Newark Mailers Union, Local 11.
Bernard Arnold, general foreman of the mailroom, testified that he was told, and was under the impression, that the purpose of the waiver was to eliminate hearing loss claims. Arnold recalled first signing a waiver in 1979, and he was told he would be fired if he did not sign the waiver. He also recalled being informed by the union that an occupational disease was "[a]nything other than falling down and breaking your leg or arm...."
Bruce Berry, counsel for Ledger, testified that Ledger's motivation for electing Article I coverage was concern over "the fact that many workers' compensation claims for occupational disease had been filed by mailers." He stated that most of the mailers were previously employed as mailers by a newspaper that closed in the early 1970s, and that the mailers filed workers' compensation claims with the Ledger for conditions they were exposed to while employed by that newspaper. Berry recommended that the waiver language be placed in the collective bargaining agreements with Peck's union, which was done in each agreement commencing in 1979. Berry testified that the waiver was required to be signed by the mailers in 1979, 1984, and again in 1996 or 1997. He said that the waiver specifically applied to mailers and anyone who did not sign it would no longer be employed by the company as it was a condition of their continued employment.
John Starkes, Vice-President and Claims Manager of John L. Gwydir Co., Ledger's insurance brokers, testified that Liberty Mutual Insurance Company insured the Ledger under a workers' compensation policy that covers all of its employees both for general compensation claims under Article II (Part I of the policy) and for occupational claims under Article I of the Act (Part II of the policy).
Ledger argues that Compensation Judge Calderone erred in denying its motion to dismiss because its Article I election notice complied with the applicable provisions of the Act (N.J.S.A. 34:15-1 et seq.).
N.J.S.A. 34:15-9 provides, in pertinent part, that:
Every contract of hiring ... shall be presumed to have been made with reference to the provisions of [Article II], and unless there be as a part of such contract an express statement in writing prior to any accident, either in the contract itself or by written notice from either party to the other, that the provisions of [Article II] are not intended to apply, then it shall be presumed that the parties have accepted the provisions of [Article II] and have agreed to be bound thereby. [Emphasis added.]
There is a presumption that employers and employees accept the provisions of Article II of the Act (N.J.S.A. 34:15-7 et seq.) unless there is an express written election not to be bound by the article.*fn4
In the case of such an election, the provisions of Article I apply,*fn5 and an employee who is not willfully negligent has a negligence action against his or her employer for damages for injuries "by accident arising out ...