Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-1961-00T3): January 16, 2002 - Argued Telephonically (A-2044-00T3): January 10, 2002
On appeal from the Division of Workers' Compensation.
These cases present the problem of when a workers' compensation claim for post-traumatic stress disorder, with alleged delayed onset (PTSD-DO), is barred by the two-year period of limitations in the Workers' Compensation Act. Petitioners contend they have two years to press these claims from the time the symptoms allegedly become manifest and a diagnosis is made, similar to an occupational disease claim. The employers contend that these claims arise from an accident and must be asserted within two years of the stress-producing events. We conclude that the employers' contention is compelled by controlling precedent. Any change in the law in this respect must come from the Legislature or a reinterpretation or modification of current precedent by the Supreme Court.
Petitioner Samuel Stango is a veteran of the Lower Township Police Department in Cape May County. He was employed as a uniformed patrolman for about nine years. Late in the evening of February 18, 1994 petitioner and Patrolman David Douglass were on duty when they responded to a domestic violence call. Upon arrival, the officers split up as they approached the house. Petitioner approached the backyard. He heard gun shots, or a "pop" and a reply "pop." He ran to the front of the house and found his partner lying on the ground bleeding. Petitioner held his partner as he struggled for life but died.
Petitioner now claims to have had flashbacks of the events and is still "tormented" by the memory of watching his partner bleed from the mouth, ears, eyes and eventually to death. He had ongoing problems with anxiety from the time of the event. He awakened at night with panic feelings, anxiety and sweats. He had bad dreams and felt inadequate in his job performance.
On February 13, 2000 petitioner Stango was bringing balloons into his home for his daughter's birthday. One or two balloons "popped" while he was bringing them in the front door. Petitioner said he suddenly felt as though he was back at the time of the shooting incident in 1994. At this point, he realized he needed help. He began to speak with other officers who also had been in "bad situations." He located a Stress Unit on the Internet and was referred to a psychologist. On April 5, 2000 he also told a superior, Lt. Donahue of the Lower Township Department, how he was feeling. He was relieved of duty and surrendered his weapon.
Dr. Lawrence Clinton, a board-certified psychologist, saw petitioner on May 3, 2000 and received the above-described history emanating from the episode in 1994. Petitioner told the psychologist this:
He said that he was upset because he had ignored a lot of his post traumatic stress symptoms for almost six years, but they would come back to haunt him. This incident last year with the balloon just brought it back full force. He had a lot of fears that he may hurt someone or be killed on the job. He has a lot of anxiety concerning this and has developed some stomach trouble. He has problems making decisions.
Dr. Clinton concluded that petitioner Stango had "an ongoing, chronic post-traumatic stress disorder with anxiety secondary to a work-related incident when his partner was shot and Mr. Stango observed his death." Medication and therapy were recommended.
In April and June 2000 petitioner Stango filed two claim petitions ÄÄ the first premised on the shooting episode in 1994 and the second on the "pop" of the birthday balloons in February 2000. Based on these undisputed facts the judge of compensation dismissed the claims as time-barred and not an occupational disease as to the 1994 claim, and not work-related as to the balloon "pop" in 2000.
At oral argument, counsel advised us that petitioner Stango has retired on a "traumatic event" accidental disability pension, see N.J.S.A. 43:16A-7, which requires a dollar-for-dollar reimbursement to the pension fund for any recovery in this workers' compensation action. See Conklin v. City of East Orange, 73 N.J. 198 (1977).
Petitioner Diana Brunell was employed by the Borough of Wildwood Crest Police Department in Cape May County as a dispatcher. On June 2, 1995 she was on duty when an officer suffered a cardiac arrest caused by trauma during an altercation with a suspect. He died that night. As the dispatcher, petitioner Brunell called for assistance at the ...