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Caution: Workers’ Compensation Filing Affects 3rd Party Asbestos Statute
Jon

Caution: Workers’ Compensation Filing Affects 3rd Party Asbestos Statute

Asbestos Litigation

The rules governing when a claim must be filed as a result of an occupational asbestos exposure have been changed by the New Jersey Supreme Court. A signed and sworn workers’ compensation claim petition, even though unsupported by medical diagnosis, is sufficient to impute discovery of the existence of a claim and toll the statute of limitations.

ASBESTOS POWDER
Kazimierz Lapka was employed by the Essex Chemical Corporation in Sayreville from 1967 to 1984. During that time, he worked as a chemical mixer requiring him to combine the liquid with pigment and asbestos powder to manufacture paneling glue. 

PLEURAL THICKENING DIAGNOSIS
In 1981 the worker was admitted to the Raritan Medical Center complaining of shortness of breath, and there were notations made on the record that the disabled worker suffered from “pleural thickening” and “increased markings within the lungs” compatible with a “previous inflammatory disease.” The chemical operator then went on disability leave. He was again admitted to the Raritan Medical Center in June of 1984, experiencing shortness of breath, weight loss, and general weakness. The diagnosis at the time of admission was chronic obstructive pulmonary disease (COPD). An x-ray was taken, which confirmed that diagnosis. 

WORKERS’ COMPENSATION CLAIM PETITION FILED
On January 14, 1986, the injured worker signed a claim petition for workers’ compensation benefits which was subsequently filed with the Division of Workers’ Compensation. The claim petition stated that “the petitioner was exposed to asbestos, noise, and chemicals.” After the filing of that claim petition, the petitioner was examined by a medical expert on behalf of the petitioner’s attorney, and he was diagnosed as having “emphysema, restrictive pulmonary disease, and small airways disease.”

ASBESTOS LIABILITY CLAIM FILED
The claimant filed a complaint against the manufacturers, suppliers, and distributors of asbestos on March 24, 1988. At that time, he alleged that he had contracted “chronic asbestosis and/or pulmonary disease” due to being “continuously exposed to both products containing finished and unfinished asbestos products, dust, particles, and fibers.” The petitioner was not diagnosed with an asbestos-related disease until admitted to the Raritan Bay Medical Center on November 2, 1996. At that time, he gave a history of “emphysema and asbestosis and silicosis since ’84.” 

KNOWLEDGE BARRED CLAIM
The New Jersey Supreme Court held that medical confirmation of the plaintiff’s injury in a toxic tort case is unnecessary for a cause of action to accrue. Instead, the existence of “some reasonable medical support” is sufficient to impute discovery. The signing of a workers’ compensation claim petition under oath cannot be subsequently disavowed by a petitioner to establish the lack of knowledge of the asserted injury and its cause of action. 
The court reasoned that the claim petition signed by the petitioner left no doubt as to the worker’s knowledge of the date of that claim petition, and the record established that the worker knew or should have known that he had a basis for a claim more than two years before the complaint was filed. The court further ruled that the record unquestionably established the petitioner’s awareness of the essential facts and that no formal hearing was necessary to resolve the discovery rule issue. Accordingly, the third-party claim was dismissed for being untimely filed.
Lapka v. Porter Hayden Co., 745 A. 2d 525 - NJ: Supreme Court 2000.
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[1] The author, 
Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com have represented injured workers and their families who have suffered occupational accidents and illnesses.

© 2000 Jon L Gelman. All rights reserved.

Recommended Citation: Gelman, Jon L.,  Caution: Workers’ Compensation Filing Affects 3rd Party Asbestos Statute,  www.gelmans.com (2000), https://www.gelmans.com/ReadingRoom/tabid/65/ArtMID/1482/ArticleID/457/preview/true/Default.aspx


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