Judge Denies Otherwise Compensable Occupational Claims Based Upon Statute Of Limitations

In a reserved decision, the Honorable Russell Wojtenko dismissed the case of Pulejo v. Middlesex County Consumer Affairs based upon the Petitioner’s failure to comply with the statute of limitations.

This case involved a denied occupational exposure claim filed by the Petitioner on April 21, 2010. The Petitioner worked for the Respondent from 1976 through 1997 as an investigator and alleged that second-hand smoke produced by co-workers resulted in the contracture of lung cancer and aggravation of his chronic obstructive pulmonary disease. In December 2000, the Petitioner submitted to a lung biopsy which revealed the presence of non-small cell carcinoma. Subsequently, on January 11, 2001, the Petitioner’s upper and mid-lobes were removed from his right lung. During his treatment in 2001, he met with his oncologist and thoracic surgeon and advised them of his second-hand smoke exposure while working.

After weighing the medical evidence presented to him, Judge Wojtenko determined that the Petitioner’s exposure to second-hand cigarette smoke while employed by the Respondent, contributed to his lung cancer. However, and despite speaking with his doctors in 2001 about the connection between his occupational exposure and diagnosis, the Petitioner did not file his claim until April 21, 2010. Judge Wojtenko determined that the claim should have been filed on or before January 11, 2003, which was two years from the date of surgery on his right lung. The Court noted that the Petitioner had actual knowledge for over 22 years that he was exposed to second-hand cigarette smoke on a daily basis. Further, and as a result of being a non-smoker, working in a smoking environment and developing lung cancer shortly after retiring, the Court determined that he should have discovered the possibility of a claim.

Notably, the Respondent failed to raise the defense of statute of limitations. Nonetheless, the Court determined that the timely filing of a claim petition is a jurisdictional prerequisite and, accordingly, dismissed the claim.

Date Published: March 1, 2017

Written by: Cooper Levenson, P.A.

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