On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claims Petition No. 2004-5705.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011 -
Before Judges Messano and Espinosa.
Petitioner, Anthony Russo, appeals from the October 29, 2010 order of the Department of Labor and Workforce Development, Division of Workers' Compensation, dismissing his petition for benefits with prejudice. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
On February 24, 2004, Russo filed a petition for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, against his employer, the Hoboken Board of Education (the Board). He alleged "[p]ulmonary and related" injuries caused by "[e]xposure to asbestos . . . dust and dirt" while at work between "1990 [and] 6/30/93."*fn1 In its answers to the original and amended petitions, the Board reserved "all statutory defenses." Discovery was subsequently exchanged.
Russo testified on July 16 and August 6, 2010. During cross-examination, the Board moved to dismiss the petition as time-barred. The workers' compensation judge (WCJ) decided to "hold the motion . . . in abeyance" and permitted Russo to complete his testimony.
Russo testified that he taught at several schools during his years of employment with the Board: the Daniel S. Keeley School (Keeley), from 1971 to 1985; the Connors School (Connors), from 1985 to 1986; and Hoboken High School (Hoboken High), from 1986 to 1993.*fn2 Russo identified possible exposure to asbestos at all three schools, noting that each underwent an asbestos remediation program during his tenure.
Russo particularly recalled the remediation program at Hoboken High, which he believed occurred for a year sometime in the early 1990s. The remediation efforts required the replacement of all ceiling tiles in the building and the removal of all dust. The program was carried out during school hours.
Russo also believed he was exposed to asbestos while at Connors. He could not recall any specific incidents but believed it may have occurred while eating lunch in the basement with other teachers. At Keeley, the remediation program lasted more than a year and included the removal of asbestos from various parts of the school including the ceiling and piping in the basement.
On cross-examination, Russo acknowledged that from early in his teaching career, he was aware "[asbestos] had harmful effects, including lung disease." Russo referenced a general "buzz going around the building" regarding the workers wearing "spaceman outfits" to conduct the remediation program. He admitted that he was concerned for his health, as well as that of the "students and teachers." He objected to the program at public meetings of the Board:
Q: And you objected because you thought it was potentially harmful, what you were being exposed to?
A: No, not just what I was being exposed to, what the students were being exposed to ...