October 18, 2013
SMILE ALVAREZ, Petitioner-Appellant,
CONTINENTAL AIRLINES, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 7, 2013
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-22421.
D. Gayle Loftis argued the cause for appellant.
Joseph V. Biancamano argued the cause for respondent (Biancamano & DiStefano, attorneys; Mr. Biancamano, of counsel and on the brief).
Before Judges Harris and Guadagno.
Plaintiff Smile Alvarez appeals from the January 25, 2013 order of the Division of Workers' Compensation dismissing his petition to receive compensation for injuries allegedly sustained while performing his duties as an employee of defendant Continental Airlines. The compensation court found that Alvarez did not give timely notice of the incident to his employer as required by N.J.S.A. 34:15-17. We agree and affirm.
I. The incident from which Alvarez seeks compensation occurred on October 21, 2001, while he was employed as an international service manager. According to Alvarez, after arriving in Quito, Ecuador as part of a routine flight, he "went to check [his], double check [his] door to make sure it was in the disarm position so it wouldn't accidentally be a deploy . . . ." Upon entering the airplane's galley, he reached "the vinyl flooring [and] both [his] feet went right up from underneath [him] and [he] flipped over on his back and shoulders." Alvarez was launched "high enough that [his] feet went over [his] shoulders and backwards and hit the floor." Ultimately, Alvarez's head, shoulders, and neck struck the airplane's floor. Alvarez refused to seek professional medical treatment in Ecuador. Instead, he self-medicated by soaking in his hotel's hot tub. Alvarez described himself as being "pretty sore. I was banged up."
After returning to the United States, Alvarez eschewed treatment at Continental's Whole Health Clinic in Newark.Instead, he directly embarked upon a pre-planned (and authorized) extended leave of absence to care for his terminally ill mother. While on leave, Alvarez did not engage in any physical activity, but noticed a deterioration in his health. Alvarez testified that within a month, he "would get a sharp pain radiate down my left arm to the point where it would bring me down to my knees. It would hurt really bad. Also my hand was going numb."
During April 2002, Alvarez returned to duty in Houston, Texas. When he attempted to check in for a series of day flights, he stated, "you know what I can't go. I can't do this. The pain in my arm was hurting too bad." Alvarez consulted a doctor at Continental's Whole Health Clinic who prescribed Ibuprofen and sent him home. Alvarez immediately went on sick leave, and did not return to work for almost one year.
On April 12, 2002, Alvarez consulted Dr. Diaz, a neurologist. Dr. Diaz prescribed a painkiller, and ordered a Magnetic Resonance Imaging (MRI) test. The MRI revealed a herniated disc.
On April 19, 2002, Alvarez filed a workers' compensation claim with the Texas Department of Workers' Compensation.
On June 6, 2002, Continental's insurance carrier informed Alvarez that it was denying his compensation claim on the ground that he did not timely report the injury to Continental.
On July 6, 2002, Alvarez underwent cervical fusion surgery.
On July 15, 2002, Alvarez filed a petition for workers' compensation benefits with the New Jersey Department of Labor – Division of Workers' Compensation stating that he had incurred a workplace injury on October 21, 2001.
On July 15, 2010 and March 24, 2011, Alvarez testified before a judge of compensation. During the 2010 hearing, Continental unsuccessfully moved to dismiss the case on the ground that Alvarez failed to comply with N.J.S.A. 34:15-17. On June 8, 2012, Dr. Arthur Tiger, Alvarez's orthopedic expert, testified, but his testimony was never completed.
On December 14, 2012, Alvarez testified again at the request of a second judge of compensation who received the case following the first judge's retirement.
On January 25, 2013, the judge dismissed Alvarez's claim. The rationale supporting this decision was the following:
[Alvarez] knew or should have known under the circumstances he testified to, that he had a work-related injury . . . on the date of the accident and that is the date the time limit runs from. The case is dismissed for failure to notify the employer pursuant to [N.J.S.A. 34:15-17] within [ninety] days of the occurrence of an injury.
This appeal followed.
On appeal, Alvarez argues that the court of compensation erred by failing to consider that his delay in notifying Continental of the injury was due to his unawareness of a causal link between the accident and the injuries he sustained. Under these circumstances, Alvarez contends that the court of compensation should have construed N.J.S.A. 34:15-17 liberally in his favor and tolled the running of the statute until at least April 2002, when Continental grounded him, and he first met with Dr. Diaz.
The judge of compensation disagreed with this analysis, finding that Alvarez knew, or should have known, of the direct link between the traumatic event of his somersault aboard the Continental airplane on October 21, 2001, and the emerging pain and related symptomatology in the succeeding month and thereafter. By waiting until at least April 2002 to lodge the claim, Alvarez failed to comply with N.J.S.A. 34:15-17's ninety-day reporting period.
As a general proposition, we are required to give "'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (citing R & R Marketing, L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). When reviewing decisions of compensation courts, our appellate review is limited to the following:
'Whether the findings made could have reasonably have been reached on sufficient credible evidence present in the record, ' considering the "proofs as a whole, " with due regard to the opportunity of the one who heard the witnesses to judge of their credibility, and in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)(quoting State v. Johnson, 42 N.J. 146, 162 (1964)).]
Therefore, "deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J.Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).
In Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 229 (2003), the Court addressed "the issue of whether Post Traumatic Stress Disorder (PTSD) is an 'accidental injury' or an 'occupational disease' under the workers' compensation statute." In dealing with this thorny question, the Court reaffirmed the need to adhere to certain readily ascertainable statutory standards in the area of claims for compensation based on a work-related accident. Id. at 236-39. With respect to injuries caused by accidents in the work place, Brunell counsels that the employee's reporting requirement is triggered at "the point at which a reasonable person would know he had sustained a compensable injury." Id. at 262.
N.J.S.A. 34:15-17 "serves to insulate employers from having to investigate an onslaught of passing accidents that do not result in injury and therefore do not constitute accidents under the statute." Id. at 237 (citing Panchak v. Simmons Co., 15 N.J. 13, 22-23 (1954)). Regarding accidental injuries, the Court observed the following:
There is usually very little problem in calculating the notice and claim limitations periods for accidental injury because in classic industrial accident cases, the injury and the unexpected traumatic event are simultaneous. For example, a construction worker who is struck by a boom or a crane and suffers disabling head injuries must notify the employer and file a claim based on the date of the striking because that is the date of the unexpected event that caused injury – in other words – the accident.
[Id. at 250.]
The relative ease in calculating the notice and claim limitations led the Court to hold that "[such] limitations in classic industrial accidents involving simultaneous traumatic event and injury will continue to be calculated from the date of the traumatic event." Id. at 261.
While the symptomatology emanating from Alvarez's fall may have worsened over time, Alvarez was aware of the injury he incurred from the moment he struck his head, shoulders, and neck in the airplane galley. Such injuries are wholly distinct from their latent and insidiously progressive counterparts that prey upon their victims without any prior indication that they were even exposed to injury. Alvarez's harm does not fall within these categories of injury. To hold so would unnecessarily expand this narrow class of cases established by Brunell.
Here, the record supports the findings of the judge of compensation that a reasonable person facing Alvarez's circumstances would have been aware that he sustained a work-related compensable injury on October 21, 2001. His failure to give timely notice to his employer under these circumstances is legally untenable. Alvarez's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).