Brock v. Public Service Electric & Gas Co.

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SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Arthur Brock v. Public Service Electric & Gas Co. (A-90-96)

 
Argued February 3, 1997 -- Decided May 29, 1997

STEIN, J., writing for a unanimous Court.

The issue in this appeal is whether an employee's failure to comply with the notice requirement of N.J.S.A. 34:15-33 bars his right to recover workers' compensation benefits for an occupational disease.

N.J.S.A. 34:15-33, read literally, bars the payment of benefits for death or disability resulting from occupational disease unless the employer either had actual knowledge of the condition or received written notice thereof within five months after the employee ceased to be exposed to the disease or within ninety days after the employee knew or should have known the nature of the disability and its relation to the employment.

Arthur Brock worked for PSE&G in various capacities from March l956 until his retirement in l987. During the course of his employment, he regularly handled and was exposed to asbestos products. In l988, after his retirement, Brock consulted a physician for shortness of breath. The physician diagnosed his condition as a mild localized pleural reaction in the right lung. When his symptoms worsened in l989, Brock consulted a pulmonary internist, who concluded that Brock suffered from pleural asbestosis. The internist mailed his report to Brock's attorney on November 8, l989. Brock first learned of his condition when he received a copy of that report from his attorney.

During l990, Brock filed suit against several asbestos manufacturers, distributors, and suppliers, which was ultimately settled. Thereafter, on October 23, 1991, approximately two years after he learned that he had been diagnosed with pleural asbestosis, Brock filed a workers' compensation claim against PSE&G, alleging that he had developed asbestosis as a result of his employment. Prior to trial, PSE&G moved to dismiss the petition for Brock's failure to comply with the notice requirements of N.J.S.A. 34:14-33. The Workers' Compensation Court granted PSE&G's motion following a three-day trial, rejecting Brock's contention that the late notice should not bar the petition because PSE&G had not been prejudiced. In reaching its conclusion, the Compensation Court apparently determined that prejudice was irrelevant and that compliance with the statutory notice mandate was a jurisdictional prerequisite to Brock's right to recover compensation.

The Appellate Division reversed, construing the statutory notice requirement to serve as a bar to occupational disease claims only if an employer can demonstrate prejudice as a result of the late notice.

Because one member of the Appellate Division panel dissented, Brock appealed to the Supreme Court as of right.

HELD: The absence of proof of employer prejudice does not excuse an employee's noncompliance with the notice requirement of N.J.S.A. 34:15-33 and, unless otherwise excused, Brock's failure to provide PSE&G with the required statutory notice that he had developed a compensable disease mandates dismissal of his compensation claim.

1. An agency's interpretation of a statute, although entitled to some weight, is not binding on the reviewing court. (p. 5)

2. Although the Workers' Compensation Act is remedial social legislation that should be given liberal construction, that construction must be constrained by the plain meaning of the statute and the underlying purpose of the legislature. (pp. 5-6)

3. The legislative history of N.J.S.A. 34:15-33 does not reveal a legislative purpose to excuse noncompliance with the notice requirement absent proof of prejudice. (pp. 6-8)

4. Because our courts have apparently assumed that failure to prove compliance with the statutory notice requirement or that the employer had knowledge of the employee's occupational disease results in an absolute bar to compensation, courts generally have been lenient in finding compliance with either the notice or knowledge requirement. (pp. 8-9)

5. In order to avoid imposition of a jurisdictional bar to compensation benefits, courts pragmatically have applied the statutory notice provision in determining when the employee knew or should have known the nature of his disability and its relation to his employment. (pp. 9-12)

6. The general rule prevailing in other jurisdictions is that a statutory requirement of notice to the employer is jurisdictional, and noncompliance results in a bar to compensation. (pp. 12-13)

7. A sharp contrast exists between the provisions of N.J.S.A. 34:15-33 and those of other state statutes that expressly excuse noncompliance with a notice requirement if an employer is unable to demonstrate prejudice. (pp. 13-14)

8. The omission of any reference to employer prejudice in N.J.S.A. 34:15-33 reflects a deliberate legislative choice to exclude employer prejudice as a factor in prescribing the consequences of noncompliance with the statutory notice requirement. (pp. 14-16)

9. Because Brock never raised the issue of PSE&G's actual knowledge of his disease, the matter is remanded to the Workers' Compensation court to consider that issue. (p. 17)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Workers' Compensation court.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN and COLEMAN join in JUSTICE STEIN's opinion. JUSTICES POLLOCK and GARIBALDI did not participate.


SUPREME COURT OF NEW JERSEY
A- 90 September Term 1996

ARTHUR BROCK,

Petitioner-Respondent,

v.

PUBLIC SERVICE ELECTRIC & GAS CO.,

Respondent-Appellant.

Argued February 3, 1997 -- Decided May 29, 1997

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 290 N.J. Super. 622 (1996).

Robert Silver argued the cause for appellant (Michals, Wahl, Silver & Leitner, attorneys).

Susan P. Callahan argued the cause for respondent (Galex, Tortoreti & Tomes, attorneys).

The opinion of the Court was delivered by
STEIN, J.
This appeal concerns the effect of a failure to comply with the notice requirement of N.J.S.A. 34:15-33 on an employee's right to recover workers' compensation benefits for an occupational disease. Read literally, that statutory provision bars the payment of benefits for death or disability resulting from occupational disease unless the employer either had actual knowledge of the condition or received written notice thereof

within five months after the employee ceased to be exposed to the disease or within ninety days after the employee knew or should have known the nature of the disability and its relation to the employment, whichever is later.
A divided panel of the Appellate Division held in a published opinion that failure to comply with the statutory notice requirement is not a bar to compensation unless the employer was prejudiced by the noncompliance. 290 N.J. Super. 221, 227 (1996). The dissenting member was of the view that non-compliance with the statute precluded recovery of benefits, irrespective of prejudice to the employer. Id. at 230-31 (Loftus, J.A.D., dissenting). The employer, Public Service Electric & Gas Co. (PSE&G), appeals as of right. R. 2:2-1(a)(2).

I
 

Respondent, Arthur Brock, worked for PSE&G in various capacities including utility helper, boiler cleaner, maintenance helper and machinist from March 1956 until his retirement in 1987. That he regularly handled and was exposed to asbestos products in the course of his employment at PSE&G is not disputed.
When Brock experienced shortness of breath in 1988, an attorney suggested that he consult a physician, who diagnosed his condition as a mild localized pleural reaction in the right lung

and recommended a reevaluation in six months. When his symptoms worsened in 1989, Brock was examined by Dr. David Goldstein, a pulmonary internist, who concluded in a report dated October 19, 1989, but mailed November 8, 1989, to Brock's attorney that Brock suffered from pleural asbestosis. Apparently, Brock first learned of his condition when he received a copy of Dr. Goldstein's report from his attorney.
During 1990, Brock instituted suit against various manufacturers, distributors, and suppliers of asbestos materials to which he had been exposed while working for PSE&G. The suit was settled, and Brock received a series of payments from defendants commencing March 14, 1991, and ending July 7, 1993.
On October 23, 1991, approximately two years after he learned that he had been diagnosed with pleural asbestosis, Brock filed a workers' compensation claim petition against PSE&G alleging that he had developed asbestosis as a result of his employment. Although PSE&G did not assert in its answer to the petition Brock's failure to comply with the notice requirements of N.J.S.A. 34:14-33, it moved to dismiss the petition on that ground prior to trial and the pretrial order included the failure to give notice as an issue in dispute. The Appellate Division rejected Brock's contention that PSE&G's failure to assert lack of notice as a defense in its answer constituted a waiver of the issue, reasoning "that Brock was actually aware throughout these proceedings that [PSE&G] had contested the adequacy of the notice

given." 290 N.J. Super. at 224. That disposition is not contested before this Court.
After the conclusion of the three-day trial, the Workers' Compensation court granted PSE&G's motion to dismiss the petition because of Brock's failure to provide timely notice, as required by N.J.S.A. 34:15-33, that he had contracted a compensable occupational disease. The Workers' Compensation court observed that even if Brock's first knowledge of his disability and its relationship to his employment did not occur until March 14, 1991, the date on which he received the first settlement check from the third-party tort action that he had instituted, he did not notify his employer until more than seven months later. Rejecting the contention that the late notice should not bar the petition because PSE&G had not been prejudiced, the Workers' Compensation court apparently concluded that prejudice was irrelevant and that compliance with the statutory notice mandate was a jurisdictional prerequisite to Brock's right to recover compensation.
Reversing, the Appellate Division majority acknowledged the existence of a substantial body of out-of-state decisional law holding that failure to comply with analogous workers' compensation statutory notice provisions bars recovery irrespective of prejudice to the employer, and that the contrary decisions excusing late notice based on lack of prejudice were based on statutory provisions specifically authorizing that result. 290 N.J. Super. at 225-26. The majority also

acknowledged that N.J.S.A. 34:15-33 contains no reference whatsoever to employer prejudice. Nevertheless, the court construed the statutory notice requirement to serve as a bar to occupational disease claims only if an employer can demonstrate prejudice as a result of the late notice. Id. at 227.

I
 

The basic principles that govern disposition of this appeal are well settled. The standard for appellate review of a workers' compensation judge's determination is equivalent to that used for review of any nonjury case, which requires the reviewing court to determine whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). An agency's interpretation of a statute, however, although entitled to some weight, is not binding on the reviewing court. Carpet Remnant Warehouse v. Department of Labor, 125 N.J. 57, 587 (1991).
First enacted in 1911, see L. 1911, c. 95, the Workers' Compensation Act (Act) is "humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). Our courts consistently have accorded the Act a liberal construction. See Bunk v. Port Auth., 144 N.J. 176, 191 (1996); Squeo v. Comfort

Control Corp., 99 N.J. 588, 596 (1985); see also Kahle v. Plochman, Inc., 85 N.J. 539, 547 (1981) ("It has long been axiomatic to this Court that the Act is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished."). Nevertheless, our courts have observed that the preference for a liberal construction of the Act must be constrained by the plain meaning of the statute and the underlying purpose of the legislature. See Bowen v. Olesky, 20 N.J. 520, 526 (1956) ("While the act is remedial in its nature, we will not by judicial decree direct compensation contrary to the legislative enactment and intention."); accord Bush v. Johns-Manville Prods. Corp., 154 N.J. Super. 188, 192 (App. Div. 1977), certif. denied, 75 N.J. 605 (1978); Buzza v. General Motors Corp., 49 N.J. Super. 322, 333 (App. Div. 1958).
The legislative history of N.J.S.A. 34:15-33 does not reveal a legislative purpose to excuse noncompliance with the notice requirement absent proof of prejudice. The notice provision was enacted in 1924 when the Legislature amended the Act to provide coverage for injury or death sustained as a result of an occupational disease. L. 1924, c. 124. The 1924 amendments required that compensation claims based on occupational disease had to be filed within one year after the employee ceased to be exposed to the occupational disease in the course of employment, L. 1924, c. 124, 22(e) (codified as amended at N.J.S.A. 34:15-34), and also provided that no compensation would be payable

unless notice that the employee has contracted a compensable occupational disease was provided to the employer "within a period of five months after the date when said employee shall have ceased to be subject to exposure to such occupational disease." L. 1924, c. 124, 22(d) (codified as amended at N.J.S.A. 34:15-33).
A 1948 amendment to the Act modified both the notice provision and the time limitation for filing occupational disease claims. L. 1948, c. 468 (codified at N.J.S.A. 34:15-33, -34). Under the 1948 amendment, claims are required to be filed within two years after the employee ceased to be exposed to the occupational disease in the course of employment, or within one year after the employee knows or should know the nature of his disability and its relation to his employment, whichever is later. N.J.S.A. 34:15-34. Similarly, the amended notice provision required notice to the employer within five months after the employee ceased to be exposed to the 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 is later. N.J.S.A. 34:15-33. The statement accompanying the 1948 amendment when presented to the Senate, although focusing on the reason for extending the filing period for occupational disease claims, also explains the Legislature's rationale for modifying the notice requirement:
The present workmen's compensation act in New Jersey provides that compensation for an occupational disease is forever barred unless the claim for such compensation is filed

within one year after the employee ceased to be exposed, in the course of employment, to the occupational disease. Thus, our workmen's compensation act fails to recognize the established fact that some occupational diseases have not become manifest until a considerably longer time than one year after cessation of the exposure. The essential purpose of this bill is to extend the statutory limitation period in an equitable and reasonable manner and, thereby, to establish in New Jersey a progressive policy in this matter comparable to that in New York, Wisconsin and other States.

[Statement to Senate Bill No. 306
(Apr. 26, 1948).]

It is generally acknowledged that the two primary objectives of the notification requirement are: (1) to afford the employer a timely opportunity to investigate the claim when the facts remain accessible; (2) to enable the employer to provide medical care in order to minimize the employee's injury. See Bucuk v. Edward A. Zusi Brass Foundry, 49 N.J. Super. 187, 199 (App. Div.), certif. denied, 27 N.J. 398 (1958); Arthur Larson, 2B Workmen's Compensation Law 78.10 at 102 (1990).
Although the question whether lack of prejudice to the employer can excuse noncompliance with the notice requirement of section 33 has not previously been decided, our courts apparently have assumed that failure to prove that the employee complied with the statutory notice requirement, or that the employer had knowledge of the employee's occupational disease, results in an absolute bar to compensation. As a result, courts generally have been rather lenient in finding compliance with either the notice or knowledge requirement. See Gamon Meter Co. v. Sims, 114 N.J.L. 590, 593-94 (Sup. Ct. 1935) (holding actual knowledge requirement fulfilled by employer's observation during course of employment that employee manifested unmistakable symptoms of chronic lead poisoning); A. Fishman Hat Co. v. Rosen, 6 N.J.Misc. 667, 669 (Sup. Ct. 1928), (holding that notice from examining physician to employer regarding employee's disability from occupational disease satisfied statutory notice requirement) aff'd, 106 N.J.