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Milos v. Exxon Co.

February 22, 1996


On certification to the Superior Court, Appellate Division, whose opinion is reported at Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Stein and Coleman join in this opinion. Justice Garibaldi did not participate.

(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).


(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance is based substantially on Judge Rodriguez's written opinion below.)

Argued January 29, 1996 -- Decided February 22, 1996


Walter Milos worked for Exxon Corporation, USA (Exxon) from 1937 until his retirement in 1978. During that time, Milos was exposed to dust, fumes, chemicals and asbestos. In April 1985, seven years after his retirement, Milos filed a workers' compensation claim petition for disability from asbestos exposure. He was awarded 17 1/2% permanent partial total disability, pulmonary in nature, for pleural calcification asbestosis. In May 1987, Milos filed an application for a "reopener" pursuant to N.J.S.A. 34:15-27. A reopener is a request to review or modify an award. The award was modified to 24% permanent partial disability.

Within a few months, Milos began participating in the Exxon Asbestos Surveillance Program (Program). The Program, funded by Exxon, 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 is not limited to employees who have already 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." Dr. Rosenman recommended that Milos be monitored yearly. Milos underwent monitoring examinations in May 1989, November 1990, and July 1992.

About the time of the last monitoring examination, Milos was evaluated by his own doctor, Susan Daum, M.D. She concluded that his pulmonary disability had increased over the previous estimate to 50% of partial total. Based on that diagnosis, Milos filed a second claim petition. Exxon moved to dismiss that petition, arguing that the pulmonary asbestosis formed the basis of the existing award and was therefore barred by the doctrine of res judicata. That doctrine provides that a cause of action that has been finally determined between the parties on the merits by a tribunal having jurisdiction cannot be re-litigated by those parties in another proceeding.

The Judge of Workers' Compensation ruled that the claim was barred by the doctrine res judicata; however, on the Judge's own motion, he amended the second claim petition to an application for a reopener. The Judge then ruled that the reopener was barred by the two-year jurisdictional limitation contained in N.J.S.A. 34:15-27, finding that the monitoring examinations did not constitute payments of compensation that would extend the statutory limitations period.

On appeal, the Appellate Division reversed and remanded, holding that Milos's participation in the employer-funded voluntary program to monitor the existence or progression of asbestos-related diseases constituted medical treatment that extended the jurisdictional limitations period for a reopener. The Appellate Division reasoned that an application for reopener is not barred if the monitoring examinations constitute payments within the meaning of N.J.S.A. 34:15-27.

Exxon argued that because the monitoring examinations were not tied to Milos's award of workers' compensation benefits, they should be considered a voluntary payment. The court disagreed, finding that treatment need not be given pursuant to an award in order to qualify as payment; the test is whether the treatment is required under the Workers' Compensation Act. The treatment need not have been actually awarded, it need only be statutorily required. The Appellate Division found it irrelevant that other employees, who were not suffering from asbestos exposure, also received monitoring examinations. The court found that, because those employees are not injured workers, the monitoring examinations, as applied to them, are not treatment required by statute. In those specific instances, the monitoring examinations are a voluntary benefit.

The Appellate Division concluded that Milos's last monitoring examinations occurred less than two years before the second claim petition was filed; therefore, the limitations period contained in the statute is extended. The Appellate Division considered this result ...

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