NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2013
On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-14074.
Stephanie L. Meredith argued the cause for appellant (Freeman, Huber, Sacks, Brennan & Fingerman, attorneys; Ms. Meredith, on the brief).
Craig H. Livingston argued the cause for respondent (Livingston, DiMarzio & Baptista, and The Blanco Law Firm, attorneys; Pablo N. Blanco, of counsel and on the brief; Frank DiMarzio, on the brief).
Before Judges Ostrer and Carroll.
Respondent United Parcel Service (UPS) appeals from an August 30, 2012 order of the Division of Workers' Compensation finding that petitioner Jose Rivera suffered a compensable workplace injury, and awarding Rivera benefits under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). UPS argues that the finding of compensability is not supported by the weight of the credible evidence, and that Rivera's claim is barred by the statute of limitations. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Rivera began working for UPS in October 1992, initially loading trucks. In 1999 he became a commercial driver, picking up and delivering packages that ranged in weight between one ounce and 190 pounds. On May 3, 2004, Rivera filed a worker's compensation claim, in which he asserted an occupational disability to his back that manifested in January 2003, as a result of "constant bending, lifting and stretching" at work. UPS filed an answer denying Rivera's occupational claim, and asserting a lack of notice defense under N.J.S.A. 34:15-17. UPS did not plead the statute of limitations as a defense, nor did it ever seek to dismiss Rivera's claim on that basis during the ensuing trial.
Compensation Judge Geoffrey Rosamond presided over the first portion of the bifurcated trial. The only issue in dispute during this phase was whether Rivera sustained an injury that was compensable under the Act. During his testimony, Rivera referred primarily to a specific July 2003 work accident, as opposed to an occupational back claim. Describing how the incident occurred, he stated:
I was picking up for a company named Albees . . . [and] I was halfway done with the truck waiting for another truck to come, but was still loading. I just picked up this other box around 15, 20 pounds, and that is it, that is when I  felt the pain . . .. I felt a sharp pain, and I called the supervisor. He said, "can you finish?" And I said, "I can try."
Rivera testified that he then notified his supervisor, Sam Battista, of his injury. According to Rivera, Battista asked him whether he could finish his shift. Rivera continued working and finished the day "with pain". Upon returning, he told Battista that he was "hurting a lot." Battista told him to go home and come back the next morning.
After being sent home again the next day (a Friday), Rivera returned on Monday after resting in bed for two days. Rivera explained that Battista's manager was not in, and therefore he was unable to obtain clearance to obtain treatment with "Concentra, " where UPS employees who sustain injuries on the job are sent after they obtain approval. Rivera testified that Chris Eltzholtz, his union shop steward, instructed him to seek treatment with a personal doctor through his own health insurance since it was apparent he was unable to obtain approval from UPS. Rivera then described the medical treatment he obtained on his own, following this advice by Eltzholtz. He was treated for a period of time by Gerrard Ferrer, D.O., until he was ultimately referred for surgery, which was performed by Ramesh Babu, M.D., at NYU Medical Center (NYU). Rivera later returned to work as a commercial driver following the ...