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Earl v. Johnson & Johnson

May 17, 1999


On certification to the Superior Court, Appellate Division, whose opinion is reported at 313 N.J. Super. 301 (1998).

The opinion of the court was delivered by: O'hern, J.

Argued March 1, 1999

This is a workers' compensation case. There are three issues: (1) whether, in violation of the applicable statute of limitations, the worker delayed filing an occupational disease claim for more than two years after the worker knew the nature of the disability and its relation to the employment; (2) whether the worker's continuous exposure until the end of employment tolled the statute of limitations; and (3) whether the worker's receipt of medical benefits through the employer's health-care provider tolled the statute of limitations. A favorable ruling on any one of these issues would entitle the worker to recover benefits.

We find that there is a sufficient basis in the record to sustain the finding of the workers' compensation Judge that the worker did not know the nature of the disability until 1993, the year a claim was filed. We will discuss only briefly the remaining issues.


Joan Earl was employed as a secretary by Johnson & Johnson from 1973 to 1993. Beginning in 1985, she was assigned to work at the Kilmer House, a historic building owned by Johnson & Johnson and located in New Brunswick. Earl worked in the file room at the Kilmer House approximately four hours a day, five days a week, monitoring employee access to confidential files.

The ventilation in the file room was poor. Its two windows were sealed shut. To protect the files from fire hazards, the file drawers were insulated with a white, solid substance that turned into powder when the files rubbed against it. The powder would spread over the files as well as over Earl's hands and clothes. Before Earl began working at the Kilmer House, it was thought that the powder might contain asbestos, but upon investigation, it was determined that this was not the case. Johnson & Johnson's industrial hygienist identified the powder as anhydrite gypsum, a substance that contains calcium sulfate and hydrous powder. The material safety data sheet for anhydrite gypsum indicates that it may cause irritation to the eyes and skin upon contact. Inhalation of the powder may also irritate the upper respiratory tract.

The office area outside the file room was shared by eight employees, including Earl. The ventilation system for the building was inadequate. The air was contaminated by stale cigarette smoke, employees' perfume, and exhaust fumes that were sucked into the building when a helicopter landed nearby once or twice per week.

Earl experienced sore throats, headaches, and eye irritation. In the winter of 1988, Earl developed respiratory and sinus infections and bronchitis. Her family physician treated her problems, and she returned to work. In February 1989, however, Earl had serious breathing difficulties while at work. She was immediately driven to her physician's office, where she received an adrenaline shot. Earl returned to work two weeks later.

On April 2, 1989, Earl suffered a second breathing attack. She was admitted to John F. Kennedy Medical Center, where her doctor diagnosed her with asthma and referred her to a pulmonary specialist. The specialist diagnosed Earl with asthma and chronic obstructive pulmonary disease (COPD), treated her with medications, and has continued to see her every three months. COPD is a term that encompasses a number of lung-related problems, such as bronchitis, asthma, and emphysema, which prevent the lungs from properly exchanging carbon dioxide for oxygen. Earl was not diagnosed with emphysema at the time.

After the second breathing attack, Earl asked her supervisor at Johnson & Johnson to change her duties. As a result, Earl's time in the file room was significantly reduced, but she continued to handle the files on a daily basis until October 1, 1993, when Earl's department was relocated to a new building. Earl left shortly thereafter because Johnson & Johnson offered her early retirement. Earl testified that she could have otherwise continued to work.

On September 10, 1993, Earl filed a Claim Petition with the Division of Workers' Compensation. She alleged that continuous exposure to irritants at Johnson & Johnson had caused permanent pulmonary problems. Johnson & Johnson argued that petitioner's claim was barred by the statute of limitations because Earl became aware of her breathing condition by 1989, and at that time believed that her respiratory problems were related to her work environment.

The compensation Judge ruled that petitioner's claim was not barred by the statute of limitations because Earl did not become aware of the extent of her permanent loss of respiratory function until 1993. The Judge also ruled that the statute of limitations was tolled pursuant to N.J.S.A. 34:15-34. That section states in part:

"in case an agreement of compensation for compensable occupational disease has been made between such employer and such claimant, then an employee's claim for compensation shall be barred unless a petition for compensation is duly filed with such secretary within 2 years after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the ...

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