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Brock v. Public Service Elec. & Gas Co.

May 29, 1997

ARTHUR BROCK, PETITIONER-RESPONDENT,
v.
PUBLIC SERVICE ELECTRIC & GAS CO., RESPONDENT-APPELLANT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at: 290 N.J. Super. 221, 675 A.2d 668 (1996).

The opinion of the Court was delivered by Stein, J. Chief Justice Poritz and Justices Handler, O'hern and Coleman join in Justice STEIN's opinion. Justices Pollock and Garibaldi did not participate.

The opinion of the court was delivered by: Stein

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, 675 A.2d 668 (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 ...


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