Before Judges Havey, Keefe and Lintner
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 25, 1999 - Decided: November 18, 1999
On appeal from a Final Decision of the Division of Workers' Compensation, New Jersey Department of Labor.
The opinion of the court was delivered by
Petitioner Arthur Brock appeals from an order entered in the Division of Workers' Compensation denying his motion for certain discovery documents and dismissing his claim petition on the ground that he failed to prove his employer, respondent Public Service Electric & Gas Company (PSE&G) had knowledge of his asbestosis condition in the context of N.J.S.A. 34:15-33. Brock appeals arguing that additional discovery would have established facts sufficient to show that PSE&G had knowledge of his condition so as to satisfy the requirements of the statute. We disagree and affirm.
Arthur Brock was an employee of PSE&G from 1956 until his retirement in 1987. It is undisputed that he was exposed to asbestos on a regular basis. During the period of his employment, PSE&G periodically screened Brock to determine if he had developed asbestosis. In 1988, after Brock retired, he began to suffer shortness of breath and was diagnosed with a mild localized pleural reaction in the right lung. *fn1 In 1989 Brock's condition worsened, and after seeing a pulmonary internist he was diagnosed with pleural asbestosis. In 1990, Brock filed a lawsuit against several manufacturers, distributors, and suppliers of asbestos material in the Superior Court, Law Division, which resulted in a settlement.
On October 23, 1991 Brock filed a workers' compensation claim against PSE&G for pulmonary disease and asbestosis allegedly arising out of and in the course of Brock's employment there. PSE&G filed a notice of motion to dismiss the claim with prejudice for failure to comply with the notice provisions of N.J.S.A. 34:15-33. Judge Ricciardelli, Supervising Judge of Compensation, granted the motion and dismissed the petition. Petitioner appealed that decision to this court.
Another part of this court reversed and remanded with one Judge Dissenting, and held that where the employer has not been prejudiced, untimely notice should not bar a petitioner's claim for workers' compensation benefits. 290 N.J. Super. 221 (App. Div. 1996). Because of the Dissent, PSE&G appealed as of right to the Supreme Court. R. 2:2-1(a)(2).
The Supreme Court held that since the judiciary was bound to apply the statute as enacted by the Legislature, prejudice to the employer was not a factor to be decided under the notice provisions of N.J.S.A. 34:15-33. Brock v. Public Service Elec. & Gas Co., 149 N.J. 378, 390-91 (1997). The Supreme Court remanded the case to the Division of Workers' Compensation, however, to resolve an issue raised for the first time at oral argument before the Court, i.e., whether PSE&G had actual knowledge during the employment relationship that Brock had contracted a compensable occupational disease thereby satisfying N.J.S.A. 34:15-33. Id. at 391-92.
On remand, petitioner issued a subpoena for discovery and production of PSE&G's documents. Brock received PSE&G's personnel files, documents relating to third party litigation, as well as X-rays and medical records regarding Brock's health during his years of employment with PSE&G. Brock's PSE&G medical records revealed that he was not suffering from a pulmonary condition during his employment. Petitioner also filed a notice of motion for discovery of additional documents. Specifically, petitioner wanted respondent to produce:
1. All documents exchanged between PSE&G and outside consulting firms (medical or otherwise) which address the dangers of asbestos;
2. All internal memorandums/documents concerning the dangers of asbestos and plans to rid the various PSE&G plants and properties of same;
3. Any and all Health Surveys which address asbestos exposure obtained or received by PSE&G which address the consequences of exposure to asbestos and any and all internal ...