In the recent matter of Teague v. Palermo Brothers Masonry (May 2016), an unpublished Appellate case, the respondent (employer) appealed an order finding the employee had a compensable occupational disease and suffered permanent disability related to his occupational exposure with the employer. The Appellate court affirmed the Trial Judge's finding.
In this case, the worker was employed as a mason beginning in 1984. He received treatment for back pain beginning in 2005, with an MRI that had positive findings. He continued to treat conservatively and take time off periodically due to pain before his work began for the employer in this case. He started working for employer, PBM, in May 2010, and stopped in September 2010, due to physical limitations. After a period of unemployment, he found work as an "electrician helper." The employee's job with PBM included block work which was installing blocks that weighed from three to fifty pounds for seven hours and twenty minutes a day. He erected a wall while working from a scaffold and at times bending over. While the employee had pain previously, he testified that the pain during the first three weeks was excruciating and constant. He had an MRI on July 10, 2012, and then saw a doctor on July 19 for his pain and a diagnosis. The employee filed a workers' compensation claim on August 29, 2012, alleging occupational exposure. The employer answered the claim denying compensability and also raised a statute of limitations defense. When a motion for medical and temporary disability benefits was filed, the employer did not raise a statute of limitations argument. An order was entered by the Judge and signed by counsel for the employer requiring authorization for causally related treatment.
After treatment concluded, the parties were unable to reach a settlement related to permanency. Therefore, a trial ensued and the employer again, in the pretrial memorandum, did not raise a statute of limitations defense. After testimony, the Judge found the employee had permanent disability related to his employment with PBM with a credit for pre-existing disability. The employer appealed the decision raising the two arguments: 1) the statute of limitations and 2) disability assigned was in excess given that petitioner worked for respondent for only four months over a 25-year-career.
The Appellate Court affirmed the Trial Judge's ruling. The Court noted that in an occupational claim the employee must file a claim within two years after knowing the nature of the occupational disability and its relationship to employment. The Court agreed that while not raised in the pretrial memorandum or during trial, the statute of limitations cannot be waived as it is jurisdictional. While agreeing to review the statute of limitations defense, the Court held that it was not violated because while the employee knew he was experiencing pain while working, he continued his exposure and the diagnosis of his condition did not occur until after his occupational exposure ended. The court found that on July 19, 2012, when he was diagnosis by his doctor the statute of limitation would have begun.
The Court then addressed the estimate of disability and noted the Judge heard the testimony of both experts and found the employee's expert testimony was consistent with employee's complaints and the Court's review of the records. Therefore, it would not disturb that decision.
Comment: The decision in Teague makes clear that you must have a diagnosis that establishes to the employee the knowledge the disability is work related for the clock to begin on the two years. Simply having pain while working, is not enough. Furthermore, the Appellate Court will not disturb the Trial Judge's decision if a percentage of disability is premised on well-reasoned credible testimony along with review of the records.
Sara L. De Long