Matthews, Lora and Morgan.
In this workmen's compensation case petitioner appeals from an order dismissing her claim petition for occupational disease on the ground that it was barred by the applicable period of limitation. N.J.S.A. 34:15-34.
Petitioner Winifred Mikitka was an employee of respondent Johns-Manville Products Corporation from April 9, 1956 until October 1970 when she retired. Several years before her retirement on March 31, 1967 she was awarded 7 1/2% partial permanent compensation for asbestosis, determined at that time to have been causally related to the conditions of her employment with respondent. Following the award she nonetheless continued her employment with respondent for about 3 1/2 years and, as previously noted, retired therefrom on October 1, 1970.
In January 1972, less than two years after her retirement, petitioner filed a new claim petition, seeking additional compensation for an alleged increase in her disability resulting from the continued exposure to conditions of employment after rendition of the 1967 award. In September 1972 this petition was dismissed when petitioner's attorney admitted to the court that her doctor was unable to find any increase in her disability. Accordingly, an order of dismissal was entered which set forth the following:
It then and there appearing from representations of the petitioner's attorney that the petitioner was unable to offer any proofs supporting a finding of any measurable increase in permanent disability, and that the petitioner no longer wishes to prosecute the matter, made in open court, the attorney for the respondent thereupon moved for a dismissal of the claim petition.
About six months later, on March 3, 1973, more than two years after petitioner left her employment with respondent, the present claim petition was filed. In it petitioner alleged permanent injury to her lungs and respiratory system presumably due to continued exposure to dust and fumes until the date of retirement on October 1, 1970. The report of the same doctor who had been unable to find increase of disability in connection with the 1972 claim petition discloses that as of February 12, 1973 he found a disability of 32 1/2% of total for asbestosis with chronic bronchitis (as contrasted with a 7 1/2% partial permanent award in 1967) resulting from exposure to dust at the respondent's plant. During the hearing on respondent's application to dismiss this claim petition petitioner made clear that what was sought was compensation for permanent disability resulting from petitioner's 3 1/2 year exposure to conditions of employment following the 1967 award. No attempt was made to explore whether the nature of the disability asserted was asbestosis (the basis of the prior award), or chronic bronchitis, referred to in petitioner's doctor's latest report, or a combination of both. The claim petition itself did not
specify the nature of the disability claimed, only that it related to petitioner's lungs and respiratory system.
The pertinent time provision in effect on the date the present claim petition was filed required filing of a claim petition for occupational disease "within two years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease * * * or within one year 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." N.J.S.A. 34:15-34; emphasis supplied.
Although it is conceded that the claim petition was filed more than two years after exposure ceased, petitioner contends that it was filed within one year after she knew or ought to have known that her disability had increased from the exposure following the 1967 award, and was therefore timely. She contends that in the present context the words "nature of his disability" must be read to refer not only to the type of disability but also to the extent thereof. Respondent, on the other hand takes the position that petitioner indisputably knew of the fact that she was suffering from asbestosis contracted from employment because her 1967 award was for that disability and that therefore the "knowledge" provisions of N.J.S.A. 34:15-34 are not here applicable since knowledge preceded cessation of exposure. That being so, respondent contends that she is barred by the fact that her claim petition was not filed within two years after the date on which she ceased to be exposed to the cause of disability. The judge of compensation agreed with the respondent's position. We disagree.
The present petition must be distinguished from one in which the claim is for increased disability stemming from the same exposure as was the basis of the original award. Such claims are governed by N.J.S.A. 34:15-27 which provides for the review of a "formal award, determination and rule for judgment or order approving ...