The rules governing when a claim must be filed as a result of an occupational exposure to asbestos 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.
Kazimierz Lapka had been 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 liquid with pigment and asbestos powder in the manufacture of paneling glue.
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.
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.” Subsequent to 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.”
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” as a result of 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 which time he gave a history of “emphysema and asbestosis and silicosis since ’84.”
The New Jersey Supreme Court held that medical confirmation of the plaintiff’s injury in a toxic tort case is not necessary for a cause of action to accrue. Rather, 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., 2000WL215657, N.J. Feb 24, 2000 (NO. A-93).
 The author, who practices in Wayne, NJ , wrote Workers’ Compensation Law, Volumes 38 and 39, New Jersey Practice (West Group). He can be reached electronically at: email@example.com. Internet: www.gelmans.com; Wayne, NJ 07470, Tel: (973) 696-7900; Fax: (973) 696-7988. COPYRIGHT ©2000 Jon L. Gelman.