On appeal from the Division of Workers' Compensation.
Approved for Publication May 2, 1995
Before Judges Gaulkin, Baime and A.a. Rodriguez. The opinion of the court was delivered by Rodriguez, A.a., J.A.D.
The opinion of the court was delivered by: Rodriguez
In this worker's compensation appeal we must decide whether an employee's participation in an employer-funded, voluntary program to monitor the existence or progression of asbestos-related diseases constitutes medical treatment which extends the jurisdictional limitations period set by N.J.S.A. 34:15-27 for an application to review or modify an award (reopener). We hold that it does and reverse the order dismissing the claim.
The facts are not in dispute. Walter Milos worked for Exxon Corporation, USA (Exxon) from 1937 until his retirement in 1978. During his employment he was exposed to dust, fumes, chemicals and asbestos. He has not worked since retiring. In April 1985, seven years after his retirement, Milos filed a claim petition for disability due to asbestos exposure. He was awarded "17 1/2% permanent partial total disability, pulmonary in nature - pleural calcification asbestosis." In May 1987, Milos filed an application for a reopener. The award was modified to 24% permanent partial disability.
Within a few months, Milos began participation in the Exxon Asbestos Surveillance Program (Program). The Program, the result of a collective bargaining agreement with Milos's union, is funded by Exxon. It was designed to monitor current and former Exxon employees who may have been exposed to asbestos for the existence or progression of asbestos-related diseases. Participation is voluntary and not limited to employees who have developed asbestos-related diseases.
Under the Program, Kenneth D. Rosenman, M.D., evaluated Milos's condition in May 1988 and concluded that he was "at risk of developing asbestos related cancers in the future." He recommended that Milos be monitored yearly. Milos underwent monitoring examinations in May 1989, November 1990 and July 1992. Each time, he was advised to continue the monitoring examinations on a yearly basis.
Around the time of the last monitoring examination, Milos was evaluated by his own physician, Susan Daum, M.D. She concluded that his "pulmonary disability [had] increased over [the] previous estimate to 50% of partial total." Milos promptly filed a second claim petition. Exxon moved to dismiss, arguing that pulmonary asbestosis formed the basis of the existing award. The Judge ruled that the claim was barred by the doctrine of res judicata and, on his own motion, amended the second claim petition to an application for a reopener. The Judge then ruled that the reopener was nevertheless barred by the two-year jurisdictional limitation contained in N.J.S.A. 34:15-27. The Judge rejected Milos's contention, raised again on appeal, that the monitoring examinations constitute payments of compensation which extend the limitations period.
Under the doctrine of res judicata, a cause of action which has been finally determined between the parties on the merits by a tribunal having jurisdiction cannot be re-litigated by those parties in a new proceeding. Velasquez v Franz, 123 N.J. 498, 505, 589 A.2d 143 (1991). Res judicata may form a defense to a workers' compensation petition. Taylor by Taylor v. Engelhard Industries, 230 N.J. Super. 245, 253, 553 A.2d 361 (App. Div. 1989). Here, the first claim petition, based on pulmonary disability due to exposure to asbestos, was determined on the merits. Therefore, a second claim petition based on a worsening of the same injury, absent additional exposure, is barred. See Mikitka v. Johns-Manville Products Corp., 139 N.J. Super. 66, 352 A.2d 591 (App. Div. 1976).
In contrast to the absolute bar that a final determination on the merits has in other fields, the Workers Compensation Act (Act), N.J.S.A. 34:15-1 to -128, permits an award to be reviewed and modified. Yeomans v. Jersey City, 27 N.J. 496, 507-08, 143 A.2d 174 (1958). N.J.S.A. 34:15-27 provides in pertinent part:
A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the ...