SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1988-15T4

ROBERT BENDER,

Petitioner-Appellant,

v.

TOWNSHIP OF NORTH BERGEN,

Respondent-Respondent.

________________________________

Argued August 15, 2017 – Decided

Before Judges Manahan and Gilson.

On appeal from Department of Labor and 

Workforce Development, Division of Workers' 

Compensation, Claim Petition No. 2007-32225.

Donald F. Burke argued the cause for appellant

(Law Office of Donald F. Burke, attorneys; Mr. 

Burke and Donald F. Burke, Jr., on the 

briefs).

Ryan J. Gaffney argued the cause for 

respondent (Chasan Lamparello Mallon & 

Capuzzo, PC, attorneys; Cindy Nan Vogelman, 

of counsel and on the brief; Qing H. Guo, on 

the brief).

PER CURIAM

Petitioner Robert Bender appeals from an order entered by a

Workers' Compensation judge entering judgment in favor of the 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

August 25, 2017
2 A-1988-15T4

Township of North Bergen (Township). After our review, we affirm 

in part and remand for amplification of the judge's decision

concerning the orthopedic claim.

We discern the following facts taken from the record.

Petitioner was employed by the Township as a police officer. 

Petitioner commenced his employment in 1979 and, after rising 

through the ranks, retired as a lieutenant in 2004. 

Petitioner filed a workers' compensation claim on October 4, 

2007, for work-related psychiatric, orthopedic, and internal 

injuries. The Township filed an answer to the petition on January 

15, 2008, asserting the statute of limitations as a defense. 

Horizon Blue Cross Blue Shield of New Jersey (Horizon) filed a 

motion to intervene, which was granted on September 29, 2010.1

On January 29, 2014, the Township filed a motion to dismiss 

for failure to comply with the statute of limitations regarding 

petitioner's orthopedic injuries. Petitioner filed a reply 

certification in opposition.

The Township filed a motion to dismiss for lack of prosecution

on February 28, 2014. In response, petitioner filed a crossmotion to compel the Township to answer interrogatories, to produce 

 

1 Horizon asserted a lien in the amount of $77,044.37, and argued 

that if petitioner's injuries are deemed work related, the Township

should take over treatment and provide reimbursement to Horizon.
3 A-1988-15T4

records, and to preclude the Township from presenting proofs at 

trial if the documents were not produced. On May 5, 2014, the 

Township filed a motion to dismiss for failure to comply with the 

statute of limitations regarding petitioner's remaining 

psychiatric claims.

Petitioner filed a substitution of attorney on May 8, 2014. 

On June 24, 2014, petitioner filed a supplemental report of 

Mercedes N. Rudelli, M.D., dated June 19, 2014. The Township 

submitted an addendum report of Kenneth J. Rubin, M.D., dated 

October 23, 2014. On May 4, 2015, petitioner submitted an undated

psychiatric evaluation report completed by Vicki Forte, Ph.D., 

M.D.

A trial took place over three non-contiguous days in 2014 and 

2015. During the trial, testimony was taken from petitioner, and,

on behalf of the Township, from Sergeant Alex Guzman, the liaison 

between the police department and the Township's workers' 

compensation carrier.

Petitioner testified about his exposure during his years as 

a police officer to various gruesome assignments and trauma. 

Petitioner further testified that in 2002, he began experiencing 

negative psychiatric issues as a result of this exposure and 

consulted Dr. Ausberto McKinney, the police department's 

physician, who referred petitioner to psychiatrist Dr. Rudelli, 
4 A-1988-15T4

who petitioner testified he was seeing "on a continuous basis ever 

since and as frequently as [he] possibly could." Saliently, 

petitioner testified that the stress associated with his 

employment led him to retire. Despite suffering from what he 

perceived to be an occupational related psychological condition, 

petitioner did not report his condition nor file a claim until 

five years later.

Concerning his claim of orthopedic injuries, petitioner 

briefly described treatments he received to his knee, shoulder, 

and neck after retiring in 2004, as well as his physical 

limitations. Petitioner acknowledged that he filed three prior 

workers' compensation claims and received prior awards for 

permanent disability. 

Guzman's testimony was limited. He testified regarding the 

procedures for filing workers' compensation claims to the 

Township's police department. 

In a seven-page written opinion, the judge held petitioner

failed to file a petition within the two-year statute of 

limitations. As such, the judge held the claim was barred.

Petitioner submitted a supplemental certification on December 

1, 2015, for the purpose of "correcting mistaken factual inferences 

[the judge] drew from the testimony" and requesting that the judge 

"incorporate this sworn statement in a supplemental factual 
5 A-1988-15T4

analysis before a final order is entered." By email dated December 

10, 2015, the judge stated that "[u]pon review of petitioner's 

attorney's correspondence . . ., there appears no need to settle 

the record as petitioner's knowledge of a compensable recovery is 

irrelevant and not a defense." 

The judge entered an order of dismissal in favor of the 

Township. This appeal followed.

Petitioner raises the following point on appeal:

POINT I

THE WORKERS' COMPENSATION COURT ERRED IN 

DISMISSING THE PETITION ON STATUTE OF 

LIMITATIONS GROUNDS.

[1.] The Workers' Compensation Act 

is remedial social legislation and 

should be given liberal 

construction in order that its 

beneficent purposes may be 

accomplished.

[2.] Under established legal 

principles, knowledge of the 

"nature" of a disability includes 

knowledge that the injury is 

compensable.

[3.] Uncontradicted testimony 

establishes that the petitioner did 

not know he had a compensable claim 

until 2007 when he filed his claim 

petition.

[4.] The Sheffield2 Doctrine tolls 

the statute of limitations because 

 

2 Sheffield v. Schering Plough Corp., 146 N.J. 442 (1996).
6 A-1988-15T4

the petitioner was ordered by the 

Police Surgeon of North Bergen to 

see Dr. Rudelli for treatment and he 

did so up to the filing of his 

workers' compensation claim and 

continuing to the present. 

[5.] The [w]orkers' [c]ompensation 

[j]udge dismissed petitioner's 

orthopedic occupational claims 

without addressing why they were 

barred.

The Division of Workers' Compensation "is deemed to have 

primary jurisdiction to decide compensability issues[.]" 

Kristiansen v. Morgan, 153 N.J. 298, 313 (1998), modified, 158 

N.J. 681 (1999). An appellate court's scope of review is limited 

to "whether the findings made could 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." 

Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) 

(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord

Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).

An appellate court may not substitute its own fact-finding 

for that of the judge of compensation. Lombardo v. Revlon, Inc., 

328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the 

factual findings and legal determination made by the judge of 

compensation "unless they are 'manifestly unsupported by or 
7 A-1988-15T4

inconsistent with competent relevant and reasonably credible 

evidence as to offend the interests of justice.'" Lindquist, 

supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 

278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 

N.J. 277 (1995)); accord Rova Farms Resort v. Inv'rs Ins. Co., 65 

N.J. 474, 484 (1974).

I.

We commence by addressing petitioner's argument that the 

claim was not barred by the statute of limitations. N.J.S.A.

34:15-51 requires claimants to file a petition for workers' 

compensation resulting from accidental injury on the job within 

two years of the accident. Petitions based on occupational disease

are barred if they are not filed within two years of the date 

plaintiff discovered the nature of the disability and its 

relationship to employment. N.J.S.A. 34:15-34.

Unlike an accident, the precise onset of an occupational 

disease may be difficult to ascertain. Earl v. Johnson & Johnson, 

158 N.J. 155, 163-64 (1999); Peck v. Newark Morning Ledger Co., 

344 N.J. Super. 169, 185 (App. Div. 2001). As a result, "N.J.S.A.

34:15-34 and our courts have recognized that the period for filing 

an occupational claim does not run until two years after the date 

the worker knew the nature of the occupational disability and its 

relationship to employment." Peck, supra, 344 N.J. Super. at 184. 
8 A-1988-15T4

For statute of limitations purposes, "'knowledge of the nature of 

[the] disability' connotes knowledge of the most notable 

characteristics of the disease, sufficient to bring home 

substantial realization of its extent and seriousness." Earl, 

supra, 158 N.J. at 163 (alteration in original) (quoting Bucuk v. 

Edward A. Zusi Brass Foundry, 49 N.J. Super. 187, 212 (App. Div.), 

certif. denied, 27 N.J. 398 (1958)).

Here, petitioner contends that he did not know he had a 

compensable claim relating to his psychiatric injuries until he 

filed the claim petition in 2007. As this court has held, merely 

experiencing symptoms and receiving treatment for a work-related 

condition is not sufficient to trigger the statutory time limits.

Id. at 161-62. Rather, the statute requires actual knowledge of 

the nature of a disability, the relation to the employment, and 

that the injury is compensable. N.J.S.A. 34:15-34; Earl, supra, 

158 N.J. at 161. In other words, the claimant must have knowledge 

that the condition rises to the level of a permanent disability, 

since only permanent disability is compensable. Earl, supra, 158 

N.J. at 162-64. However, "[s]uch knowledge is immaterial in 

ongoing exposures for which a petitioner can file within two years 

from the last exposure." Id. at 167 (citation omitted). 

After considering and weighing the testimony, the judge held 

that petitioner "knew of the nature of the disability and its 
9 A-1988-15T4

relation to the employment for compensable occupational disease; 

[yet, he] failed to file a petition within [two] years after the

date on which [he] first knew the nature of the disability and its 

relation to the employment."

In pertinent part, the judge found:

[p]etitioner admitted that he was fully aware 

that work exposures were causing him distress 

as early as 2002. In fact, petitioner

credibly testified that the stress level was 

so egregious that he counted the days until 

his retirement, declined a request to work an 

additional four months, and forwent 

significant additional income in a time and 

leave retirement which he could have earned 

had he remained employed.

 

As to petitioner's argument that the referral by Dr. McKinney 

constituted adequate notice to the Township, the judge held "it 

cannot be credibly argued that petitioner was not fully and 

adequately aware of the written notice requirements for filing a 

workers' compensation claim as he had done so in the past." 

Given our review of the record and in consideration of our 

standard of review, we discern no error in the judge's holding 

that petitioner failed to file a timely claim relating to his 

occupational disability. By his own testimony, petitioner was 

aware as early as 2002 of the relationship between the 

psychological symptoms he was experiencing and his employment. As 

well, given his claim history, petitioner was very familiar with 
10 A-1988-15T4

the compensation process. In sum, the record is clear that, in 

advance of the expiration of the applicable statute of limitations, 

petitioner knew the nature of his disability and its relationship 

to his employment.

II.

We next address petitioner's argument that the judge failed 

to properly evaluate the evidence. In terms of our deference to 

decisions of a judge of compensation, we have held that "where the 

focus of the dispute is not on credibility but, rather, alleged 

error in the trial judge's evaluation of the underlying facts and 

the implications to be drawn therefrom, our function broadens 

somewhat." Manzo v. Amalgamated Indus. Union Local 76b, 241 N.J. 

Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). 

In Manzo, we accepted the findings of fact by the workers' 

compensation judge, but disagreed with the conclusions drawn from 

those facts. Id. at 614. We will "appraise the record as if we 

were deciding the matter at inception and make our own findings 

and conclusions" only if the judge of compensation "went so wide 

of the mark that a mistake must have been made." Id. at 609 

(quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. 

Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Here, petitioner challenges the judge's fact-findings in the 

first instance; whether petitioner was aware he had a compensable 
11 A-1988-15T4

claim and yet did not file a claim petition within the two-year 

statute of limitations. Those findings required credibility 

determinations, not the evaluation of established facts as in 

Manzo. Despite the urging of petitioner on this score, we conclude 

that our independent review of the judge's factual findings and 

credibility determinations based on the trial proofs is 

unwarranted. Even were we to conclude otherwise regarding our 

scope of review, the judge's conclusions are not only not "wide 

of the mark," they are, to the contrary, entirely consistent with 

the trial record. 

III.

Next, petitioner argues that the judge failed to adequately

analyze the petitioner's orthopedic claims. Workers' compensation 

judges must furnish clear, complete, and articulate reasons 

grounded in the evidence. See In re Vey, 124 N.J. 534, 543-44 

(1991). "When the absence of particular findings hinders or 

detracts from effective appellate review, the court may remand the 

matter to the agency for a clearer statement of findings and later 

reconsideration." Id. at 544. The Supreme Court long ago 

emphasized the importance of this obligation with respect to 

administrative agencies, stating:

It is axiomatic in this State . . . that an 

administrative agency . . . must set forth 

basic findings of fact, supported by the 
12 A-1988-15T4

evidence and supporting the ultimate 

conclusions and final determination, for the 

salutary purpose of informing the interested 

parties and any reviewing tribunal of the 

basis on which the final decision was reached 

so that it may be readily determined whether 

the result is sufficiently and soundly 

grounded or derives from arbitrary, capricious 

or extra-legal considerations.

[In re Application of Howard Sav. Inst., 32 

N.J. 29, 52 (1960).]

In the instant matter, we are unable to determine from a 

reading of the decision whether or on what basis the judge decided 

the compensability of the orthopedic injuries claim. We note that

while petitioner's orthopedic injuries were documented during the 

course of his employment, he contended that these injuries were 

"insidiously progressive" and "did not manifest themselves until 

less than two years before the filing of his claim petition in 

2007." See Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 

229 (2003) ("[I]n the narrow band of accident cases that result 

in latent or insidiously progressive injury, the accident statute 

of limitations does not begin to run until the worker knows or 

should know that he has sustained a compensable injury."). Thus, 

petitioner argues, and we agree, that there remain factual issues 
13 A-1988-15T4

in dispute not addressed by the decision. We are therefore 

constrained to remand this matter for resolution of those issues.3

On remand, the judge of compensation shall make 

particularized findings and determine whether petitioner has filed 

his claim regarding his orthopedic injuries within the appropriate 

statute of limitations.

Affirmed in part and remanded in part for further proceedings 

consistent with this opinion. We do not retain jurisdiction.

 

3 Relative to this issue, the Township argues that since the facts 

in this matter are not in dispute, this court should exercise 

original jurisdiction under Rule 2:10-5. While we may exercise 

original jurisdiction as "necessary to the complete determination 

of any matter" we review, Rule 2:10-5, we rarely do so if issues 

of witness credibility are involved, or if the expertise of the 

agency may be relevant. Pressler & Verniero, Current N.J. Court 

Rules, comment on R. 2:10-5 (2017). In light of the record before 

us and the expertise involved with a judge of compensation, we 

discern no basis to exercise original jurisdiction.