On appeal from a decision of the Division of Workers' Compensation, Department of Labor.
Approved for Publication May 13, 1996. As Amended July 1, 1996.
Before Judges Long, Brochin and Loftus. The opinion of the court was delivered by Long, P.j.a.d. Loftus, J.s.c. (temporarily assigned) Dissenting.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
On this appeal, petitioner, Arthur Brock, challenges the dismissal of the Workers' Compensation claim he filed against respondent, Public Service Electric & Gas Co. (PSE&G). The compensation Judge based the dismissal on N.J.S.A. 34:15-33 which provides that a petitioner must:
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. (emphasis added).
The facts of the case need not be related in detail except to say that Brock worked for PSE&G for over thirty years in various capacities, often dealing with asbestos. He retired in 1987 at which time he was experiencing shortness of breath. Although he consulted a lawyer and a doctor in 1988, he did not learn for sure that he had asbestosis until November of 1989 when Dr. David S. Goldstein, a pulmonary internist, advised him in writing of that fact. Sometime in 1990, Brock filed suit against several manufacturers, distributors and suppliers of asbestos materials as a result of his asbestosis condition. The suit was settled, and on March 14, 1991, Brock received the first in a series of settlement checks. On October 23, 1991, he filed a Workers' Compensation claim petition against PSE&G, alleging that he contracted asbestosis from exposure to it during his employment. In sum, Brock waited almost two years after he knew of his occupational disease to file a claim and never notified PSE&G of his disease prior thereto.
The issue before the trial Judge and before us is whether N.J.S.A. 34:15-33 is jurisdictional or whether Brock may proceed with a compensation action, having failed to notify his employer within ninety days of discovering his occupational disease, if PSE&G was not prejudiced by the late filing.
As a preliminary matter, we address Brock's contention that the failure of PSE&G to assert lack of proper notice in its answer constituted waiver of that claim under N.J.S.A. 34:15-52 which states that after a worker's compensation claim is filed, the employer's answer "shall... admit or deny the substantial averments of the petition, and shall state the contention of the defendant with reference to the matters in dispute as disclosed by the petition." (emphasis added). Here, although PSE&G's answer did not raise the notice issue, PSE&G moved to dismiss the petition on those grounds at the beginning of the trial, and the pretrial order specifically listed notice as an issue in dispute. Brock thus had ample warning in advance of trial that notice would be in issue and was prepared, and indeed did, present legal and factual arguments at the hearings on this issue. Our cases have recognized an exception to N.J.S.A. 34:15-52 in situations such as this in which the adversary has been advised by motion, pretrial order or in a timely manner before the hearing that notice is, in fact, an issue. Goldklang v. Metropolitan Life, 130 N.J. Super. 307, 312, 326 A.2d 690 (App. Div.), aff'd, 66 N.J. 1 (1974); Stein v. Felden, 17 N.J. Super. 311, 314-16, 86 A.2d 19 (App. Div. 1952). See also Hinz v. Western Electric Inc., 9 N.J. Super. 93, 75 A.2d 149 (App. Div. 1950). Nothing in Conway v. Mister Softee, Inc., 51 N.J. 254, 239 A.2d 241 (1968), cited by Brock suggests a contrary result. We are satisfied, as was the trial Judge, that Brock was actually aware throughout these proceedings that PSE&G had contested the adequacy of the notice given.
We turn next to the merits of the notice issue. Brock correctly argues that the purpose of the notice statute is to avoid prejudice to the employer by (1) affording it the opportunity to provide immediate medical diagnosis and treatment for the purpose of minimizing harm, and (2) facilitating the earliest possible investigation of the facts. Bucuk v. Edward A. Zusi Brass Foundry, 49 N.J. Super. 187, 199, 139 A.2d 436 (App. Div.), certif. denied, 27 N.J. 398 (1958); Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 173 A. 606 (Sup. Ct. 1934), aff'd, 114 N.J.L. 254, 176 A. 198 (E. & A. 1935). He urges that because no amount of medical treatment could have minimized his condition, and because PSE&G was well aware of the asbestos at its plants through other filed claims, it was not prejudiced by his failure to provide notice of his compensable occupational disease. *fn1
PSE&G counters that notice within ninety days is jurisdictional and that a prejudice analysis is inappropriate once the ninety-day period elapses. In support of this proposition, it cites Hercules Powder, supra, 114 N.J.L. at 255, and Goldstein v. Continental Baking Co., 28 N.J. Super. 55, 58, 100 A.2d 337 (App. Div. 1953), rev'd on other grounds, 16 N.J. 8, 105 A.2d 848 (1954), which construed a cognate enactment, N.J.S.A. 34:15-17, and held the notice provision to be a condition precedent to the maintenance of a non-occupational disease claim. The trial Judge agreed with PSE&G. It is here that we part company from her.
We recognize that there is a substantial body of out-of-state cases suggesting the inviolability of a notice provision regardless of whether prejudice to the employer is shown. Colorado Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P. 2d 480 (Colo. 1966); Ferguson v. Industrial Comm'n, 397 Ill. 348, 74 N.E. 2d 539 (Ill. 1947); Mozley v. American General Ins. Co., 324 S.W. 2d 925 (Tex. Civ. App. 1959); Scott v. Texas Employers' Ins. Ass'n, 118 S.W. 2d 354 (Tex. Civ. App. 1938). Indeed, it has been held that, in the absence of an express legislative provision, failure to give timely notice of injury to the employer is a bar to recovery despite lack of prejudice. Arthur Larson, 2B Workmens' Compensation Law, § 78.32(a) (1995). See also Farrow v. Carr Bros. Co., Inc., 393 A.2d 1341 (Me. 1978); Podkastelnea v. Michigan Cent. R. Co., 198 Mich. 321, 164 N.W. 418 (Mich. 1917); Ramos v. Production Steel, 87 Mich. App. 30, 273 N.W. 2d 578 (Mich. Ct. App. 1978); Gesmundo v. Bush, 133 Conn. 607, 53 A.2d 392 (Conn. 1947). The out-of-state cases which have reached a contrary result and declared lack of prejudice to the employer to excuse failure of notice by the employee are generally based on statutes which specifically provide for such an outcome. Bethlehem Steel Co. v. Parker, 72 F. Supp. 35 (D.C.Md.), aff'd, 163 F. 2d 334 (4th Cir. 1947); Argonaut Min. Co. v. Industrial Accident Comm'n, 21 Cal. App. 2d 492, 70 P. 2d 216 (Cal. Dist. Ct. App. 1937); Dawson v. Hartwick, 91 Idaho 561, 428 P. 2d 480 (Idaho 1967); Atlantic & Pacific Tea Co. v. Industrial Comm'n, 67 Ill. 2d 137, 364 N.E. 2d 83, 7 Ill. Dec. 96 (Ill. 1977); Gales v. Peter Kiewit Sons' Co., 184 Kan. 573, 337 P. 2d 669 (Kan. 1959); Smith v. Phoenix Assurance Co. of New York, 231 So. 2d 733 (La. Ct. App.), writ refused, 234 So. 2d 195 (1970); Thibeault's Case, 341 Mass. 647, 171 N.E. 2d 151 (Mass. 1961); Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W. 2d 97 (Mo. Ct. App. 1972); DeCarlo v. Bergamini, 16 A.D.2d 1001, 229 N.Y.S. 2d 276 (N.Y. App. Div. 1962).
Unlike these statutes, N.J.S.A. 34:15-33 is silent as to the issue of prejudice to the employer. It is true as PSE&G argues that in construing N.J.S.A. 34:15-17, the courts in Hercules Powder, supra, and Goldstein, supra, affirmed that its notice provision is not merely directory. However, neither of those cases involved a claim by the injured employee that the employer was not prejudiced by the late notice. Moreover, Brock does not suggest that the language in N.J.S.A. 34:15-33 should be viewed as directory. On the contrary, he urges that where an employer is not prejudiced by late notice, there is simply no reason to bar consideration of an injured employee's claim. The decision in Electronic Associates v. Heisinger, 111 N.J. Super. 15, 266 A.2d 601 (App. Div. 1970) supports this view. There the court held that where the employer was not prejudiced by the late notice and did not dispute that the disability was work connected, petitioner should not be deprived of statutory benefits. Id. at 19. We ascribe to this view.
The paramount question in every case in which conflicting interpretations of a statute are advanced is which interpretation more fully accords with the legislative intent. Jacobitti v. Jacobitti, 135 N.J. 571, 641 A.2d 535 (1994); State v. Galloway, 133 N.J. 631, 628 A.2d 735 (1993). Here the Legislature incorporated a notice provision into the Workers' Compensation Act. Unlike a statute of limitations which has as its purpose the giving of repose to human affairs ( Leake v. Bullock, 104 N.J. Super. 309, 250 A.2d 27 (App. Div. 1969)), a notice provision is focused on avoiding prejudice to an employer whose employee is claiming a compensable occupational disease by allowing for immediate and timely investigation and for mitigation of damages. To carry out the legislative intent, it is clear that the notice provision must be strictly construed where prejudice to an employer can be shown to have flowed from want of notice. On the other hand, no legislative intent that we can discern would be served by barring the claim of an employee with a compensable occupational disease for failing to give timely notice to an employer whose rights are in no way prejudiced thereby. Indeed such an interpretation seems to us to fly in the face of the well-established principle that the Workers' Compensation Act is social legislation which is to be liberally construed to achieve its humane purposes. Panzino v. Continental Can Co., 71 N.J. 298, 303, 364 A.2d 1043 (1976). This is not to suggest that we are empowered to supply deficiencies that may seem to exist in the handiwork ...