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Post-traumatic stress disorder may be an accidental injury or an occupational disease under the Workers’ Compensation Act. Either way, the time clock for filing a claim doesn’t start ticking until the worker knows or should know that he or she has sustained a compensable injury, the New Jersey Supreme Court ruled May 21. The court, in consolidated rulings, allowed two workers’ suits to go forward although both were filed after the act’s two-year statute of limitations for accident claims expired. The lower courts had found the act’s less-onerous two-year discovery rule for occupational diseases inapplicable. Justice Virginia Long led the unanimous court in holding that PTSD, as a latent or insidiously progressive condition, may qualify as an accidental injury or an occupational disease, depending on the circumstances. When the facts of a case straddle both categories, a worker is entitled to file both claims, and the discovery rule will apply. “PTSD is an example of an insidious disease process of which the worker is unaware at the time of the original traumatic event,” Long wrote in Brunell v. Wildwood Crest Police Department and Stango v. Lower Twp. Police Department, A-126/127-01. “If the statute is read to time the notice and the filing of a claim from the traumatic event, a worker’s right could expire before there was any evidence whatsoever that he had been injured.” POLICE DEATHS TRIGGERED CLAIMS Both cases stemmed from police department fatalities. Diane Brunell, a dispatcher employed by the Wildwood Crest Police Department, sent a police officer to a traffic stop in June 1995. During a scuffle with the motorist, the officer died of cardiac arrest. Brunell began experiencing problems at work and in 1999 was diagnosed with PTSD. Lower Township Police Patrolman Samuel Stango and his partner answered a domestic disturbance call in February 1994. The partner was shot, and Stango watched him bleed to death. Stango noticed increased anxiety and began awakening at night with feelings of panic, flashbacks and bad dreams, but he continued to work. Six years later, he heard a balloon pop at a children’s party, which he said set off a series of disturbing dreams involving snipers. He was relieved of his duties and diagnosed with PTSD. Because the two cases raised similar issues, and because the same lawyer represented both the Wildwood Crest and Lower Township police departments, the cases were consolidated. The workers’ compensation judge granted the state’s motions to dismiss because neither petition was filed within two years of the incident alleged to have caused PTSD. The Appellate Division affirmed, finding that PTSD, being triggered by a traumatic event, is compensable as an accident and thus is governed by the two-year statute of limitations under the Workers’ Compensation Act. Citing Schwarz v. Federal Shipbuilding & Dry Dock Co., 16 N.J. 243 (1954), the panel stated: “[O]urs is an ‘accident’ statute and not an ‘injury’ statute. Our courts have found no indication of a legislative purpose to suspend the running of the statute until the injury becomes manifest.” But the court last week found too harsh the application of the two-year statute of limitations to delayed-onset injuries like PTSD and enunciated a new rule. “We are … satisfied that in the limited class of cases in which an unexpected traumatic event occurs and the injury it generates is latent or insidiously progressive, an accident for workers’ compensation filing purposes has not taken place until the signs and symptoms are such that they would alert a reasonable person that he had sustained a compensable injury,” Long wrote. The court found that the majority of courts of other states addressing the issue have come to the same conclusion and that Massachusetts, Rhode Island and North Dakota have enacted statutes that start the clock running on the date the employee knows or reasonably should know that he or she suffered a work-related injury. The lawyer for both police departments, Michael Affanato, a partner at Westmont, N.J.’s Margolis Edelstein, argued that because the Legislature specifically enacted a discovery rule for occupational diseases without a concomitant modification of the statute of limitations for accidents, the court has no power to ameliorate the harsh results of treating the traumatic event as an accident. Long said that argument flew in the face of the progressive attitude underlying the Legislature’s history of workers’ compensation reforms. In 1948, the discovery rule was added in recognition that some occupational diseases do not become manifest until a considerably longer time than one year after cessation of the exposure. In 1974, after case law strictly construed the five-year statute of repose to bar claims for latent diseases not manifesting themselves within that time, the Legislature repealed the five-year statute. “Against that backdrop, it seems evident that if the Legislature had been faced expressly with the narrow class of accident cases involving latency and insidious onset diseases, it would have included them under a discovery-rule umbrella,” Long concluded. Brunell is represented by Christine DiMuzio, an associate at Woodbury, N.J.’s Hoffman, DiMuzio & Hoffman. Stango is represented by Carmine Taglialatella, an associate at Northfield, N.J.’s Press & Long. Neither returned telephone calls seeking comment.

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