                        NOT FOR PUBLICATION WITHOUT THE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.

                                 2                           A-3691-15T4
     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,

                                      3                        A-3691-15T4
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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