CRAIG MARA VS. UNITED PARCEL SERVICE(DIVISION OF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3691-15T4
CRAIG MARA,
Petitioner-Appellant,
v.
UNITED PARCEL SERVICE,
Respondent-Respondent.
____________________________
Submitted July 25, 2017 – Decided August 4, 2017
Before Judges Reisner and Suter.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2011-6018.
Shebell & Shebell, LLC, attorneys for
appellant (Raymond P. Shebell, of counsel;
Danielle S. Chandonnet, on the brief).
Brown & Connery, LLP, attorneys for respondent
(Stephanie L. Meredith, on the brief).
PER CURIAM
Petitioner Craig Mara appeals from a March 31, 2016 order
entered by a Judge of Workers' Compensation, dismissing as untimely
his petition seeking compensation from his employer, United Parcel
Service (UPS). We affirm.
N.J.S.A. 34:15-34 generally requires that a compensation
petition must be filed "within 2 years after the date on which the
claimant first knew the nature of the disability and its relation
to the employment." Ibid. However, if the employer or its insurer
pays or agrees to pay compensation, a petition must be filed within
two years after the last payment, or within two years after the
employer or insurer fails to make payment. Ibid. The purpose of
the latter provision is to prevent an employer or its workers'
compensation insurer from lulling an employee into delaying in
filing a petition. See Sheffield v. Schering Plough Corp., 146
N.J. 442, 453-54 (1996).
In the workers' compensation hearing, Mara claimed that he
did not realize his knee condition was work-related until after
he had surgery in 2010 and, therefore, his petition was timely.
He also argued that the two-year time limit was tolled because his
employer-provided regular health insurance paid for some
treatments to his knees.
Following a testimonial hearing, the compensation judge found
that Mara, who began working as a package car driver in 1983, knew
as early as 2006 that his knee pain was related to his work. In
fact, his personal chiropractor, Dr. Ruth, who had been treating
Mara for knee pain since 2003, had so advised him.
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The judge found that Mara had surgery for a torn left knee
medial meniscus about ten years before the hearing, and thereafter
wore a brace on that knee. At the hearing, Mara admitted telling
his doctor that he felt pain in his left knee when driving and
moving around at work, and also had problems with his right knee
at work. He admitted telling Dr. Ruth that his work activities
were causing him problems with both knees.
Mara had bilateral knee replacement surgery in 2010, and
thereafter, transferred to a clerical position because he could
no longer function as a package car driver. He filed a claim
petition in 2011. Because Mara was aware, since at least 2006,
that his knee problems were work-related, the compensation judge
found that his claim was barred under N.J.S.A. 34:15-34.
The compensation judge rejected petitioner's argument, that
the two-year time limit was tolled because his employer-provided
private health insurance paid for his knee treatment and surgery.
She based that conclusion on evidence that the employer's basic
health insurance plan was completely separate from its workers'
compensation plan, and there was no evidence "that petitioner
. . . was unaware of respondent's workers' compensation plan."
She found that neither the employer nor its insurer had done
anything to lull Mara into believing that his receipt of ordinary
health insurance coverage, which paid for his knee treatments,
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somehow constituted payment, or an agreement to pay, workers'
compensation benefits.
Having reviewed the record, we find that the compensation
judge's decision is supported by sufficient credible evidence.
See Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999).
Considerably more than two years prior to his 2011 petition, Mara
was well aware that the problems in both his knees were work-
related. Long before the 2010 knee replacements, the problem with
at least one knee was sufficiently severe as to require surgery
to repair a torn meniscus. Moreover, we agree with the
compensation judge that the employer did nothing to lull Mara into
delaying the filing of his petition. We therefore find no basis
to disturb the judge's finding that Mara's claim was untimely.
Asserting a new legal theory on appeal, Mara now claims that
his petition should be deemed timely because he did not realize
the extent of his disability until he had the 2011 knee surgery.
Because Mara did not raise the claim in the compensation court,
the employer had no opportunity to make a factual record to rebut
the argument, and the compensation judge had no opportunity to
address it. Ordinarily, we will not consider an argument raised
for the first time on appeal, and we decline to depart from that
salutary rule here. See Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973).
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Affirmed.
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