Brock v. Public Service Electric & Gas Co.

LOFTUS, J.S.C.

(temporarily assigned) dissenting.

I respectfully dissent from the majority opinion.

The standard of review to be applied is whether the order of the Workers’ Compensation Judge was supported by substantial credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965); Mathesius v. St. Barnabas Medical Center, 265 N.J.Super. 83, 94, 625 A.2d 567 (App.Div.) certif. denied, 134 N.J. 560, 636 A.2d 519 (1993); Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J.Super. 604, 609, 575 A.2d 903 (App.Div.), certif. denied, 122 N.J. 372, 585 A.2d 379 (1990). Applying this standard of review to this case, I would affirm.

Brock became aware that he had asbestosis upon receipt of his physician’s letter mailed on November 8,1989. Sometime in 1990, he filed suit against several manufacturers, distributors and suppliers of asbestos materials as a result of his asbestosis condition. There were several settlements against several different asbestos manufacturers, and on March 14,1991, Brock received the first in a series of settlement checks. On October 25, 1991, he filed a Workers’ Compensation claim petition against PSE & G, alleging that he contracted asbestos from exposure to it during his employment. Thus, Brock waited almost two years after he knew of his occupational disease to file a claim and did not notify PSE & G of his disease prior thereto.

N.J.S.A 34:15-33 provides:

Unless the employer during the continuance of the employment shall have actual knowledge that the employee has contracted a compensable occupational disease, or unless the employee or someone on his behalf, ... shall give the employer written notice or claim that the employee has contracted a compensable occupational disease, which notice to be effective must be given within a period of five months after the date when the employee shall have ceased to be subject to exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration, no compensation shall be payable on account of the death or disability by occupational disease of the employee.
Under this section, notice to or knowledge on the part of the employer shall be deemed notice to or knowledge, as the case may be, on the part of the insurance carrier; and notice to or knowledge on the part of the insurance carrier shall be *229deemed notice to or knowledge, as the case may be, on the part of the employer, (emphasis added).

The Workers’ Compensation Judge found:

Petitioner acknowledges that the first notice received by the respondent was the claim petition file dated October 25,1991. It should be noted that the petitioner in this matter has several third party cases pending against the manufacturers of asbestos used by the respondent in its facilities.
When petitioner was questioned by the Court, petitioner’s attorney could not provide the days that these claims were filed, however, she did acknowledge that the petitioner did, in fact, receive settlements of these cases starting on March 14, 1991, when the first settlement check was received. Assuming that petitioner’s first knowledge of his disability and its relationship to his employment was when he received his first settlement check in third party actions against the manufacture of the asbestos, petitioner’s claim must be dismissed, since no notice was given to the employer until October 25, 1991, some seven months after receipt of his first settlement check on his third party claims, (emphasis added).

These findings were supported by substantial, credible evidence in the record.

The New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 et seq., provides a quick, efficient remedy for wage loss and the permanent impairment of physical capacity suffered by workers because of work connected injuries. Electronic Associates, Inc. v. Heisinger, 111 N.J.Super. 15, 19, 266 A.2d 601 (App.Div.1970). It is social legislation which should be liberally construed to achieve humane purposes. Panzino v. Continental Can Co., 71 N.J. 298, 303, 364 A.2d 1043 (1976). However, the wisdom, good sense, policy and prudence of a statute are matters within the province of the Legislature and not of the court. White v. Township of North Bergen, 77 N.J. 538, 554-55, 391 A.2d 911 (1978).

N.J.S.A 34:15-33 does not contain an express provision requiring that the employer establish prejudice before the notice provisions become applicable. When the Legislature chose to include a prejudice exception it did so as in N.J.S.A 34:15-17 which provides:

Unless the employer shall have actual knowledge of the occurrence of the injury, or unless the employee, or some one on his behalf, or some of the dependents, or some one on their behalf, shall give notice thereof to the employer within fourteen days of the occurrence of the injury, then no compensation shall be due until such notice is given or knowledge obtained. If the notice is given, or the knowledge *230obtained within thirty days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation, unless the employer shall show that he was prejudiced by such want, defect or inaccuracy, and, then only to the extent of such prejudice. If the notice is given, or the knowledge obtained within ninety days, and if the employee, or other beneficiary, shall show that his failure to give prior notice was due to his mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation or deceit of another person, or to any other reasonable cause or excuse, then compensation may be allowed, unless, and then to the extent only that the employer shall show that he was prejudiced by failure to receive such notice. Unless knowledge be obtained, or notice given, within ninety days after the occurrence of the injury, no compensation shall be allowed, (emphasis added).

The Division of Workers’ Compensation does not have jurisdiction to entertain a claim petition filed after the expiration of the time designated in the statute. De Asio v. City of Bayonne, 62 N.J.Super. 232, 235-36, 162 A.2d 596 (App.Div.), cert. denied, 33 N.J. 386, 164 A.2d 849 (1960). “The Compensation Bureau is a creature of statute, and its special and limited jurisdiction cannot be inflated by consent, waiver, estoppel, or judicial inclination.” Id. at 236, 162 A.2d 596.

Electronic Associates, Inc. v. Heisinger, supra, 111 N.J.Super. 15, 266 A.2d 601, is distinguishable from this case. In that case, the trial judge found that although petitioner may have been aware of her disability, she was unaware of its relation to her employment until she consulted counsel and consequently the late notice was permitted. Id. at 19,266 A.2d at 603. In this case, the evidence indicates that Brock knew that the asbestosis was related to his employment but failed to file his workers’ compensation petition within the time requirements of N.J.S.A 34:15-33.

I would affirm substantially for the reasons set forth by the judge of workers’ compensation.