(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance is based
substantially on Judge Rodriguez's written opinion below.)
Argued January 29, 1996 -- Decided February 22, 1996
PER CURIAM
Walter Milos worked for Exxon Corporation, USA (Exxon) from 1937 until his retirement in 1978.
During that time, Milos was exposed to dust, fumes, chemicals and asbestos. In April 1985, seven years after
his retirement, Milos filed a workers' compensation claim petition for disability from asbestos exposure. He
was awarded 17½" permanent partial total disability, pulmonary in nature, for pleural calcification asbestosis.
In May 1987, Milos filed an application for a "reopener" pursuant to N.J.S.A. 34:15-27. A reopener is a
request to review or modify an award. The award was modified to 24" permanent partial disability.
Within a few months, Milos began participating in the Exxon Asbestos Surveillance Program
(Program). The Program, funded by Exxon, was designed to monitor current and former Exxon employees
who may have been exposed to asbestos for the existence or progression of asbestos-related diseases.
Participation is voluntary and is not limited to employees who have already developed asbestos-related
diseases.
Under the Program, Kenneth D. Rosenman, M.D. evaluated Milos's condition in May 1988 and
concluded that he was "at risk of developing asbestos-related cancers in the future." Dr. Rosenman
recommended that Milos be monitored yearly. Milos underwent monitoring examinations in May 1989,
November 1990, and July 1992.
About the time of the last monitoring examination, Milos was evaluated by his own doctor, Susan
Daum, M.D. She concluded that his pulmonary disability had increased over the previous estimate to 50" of partial total. Based on that diagnosis, Milos filed a second claim petition. Exxon moved to dismiss that
petition, arguing that the pulmonary asbestosis formed the basis of the existing award and was therefore
barred by the doctrine of res judicata. That doctrine provides that a cause of action that has been finally
determined between the parties on the merits by a tribunal having jurisdiction cannot be re-litigated by those
parties in another proceeding.
The Judge of Workers' Compensation ruled that the claim was barred by the doctrine res judicata;
however, on the judge's own motion, he amended the second claim petition to an application for a reopener.
The Judge then ruled that the reopener was barred by the two-year jurisdictional limitation contained in
N.J.S.A. 34:15-27, finding that the monitoring examinations did not constitute payments of compensation that
would extend the statutory limitations period.
On appeal, the Appellate Division reversed and remanded, holding that Milos's participation in the
employer-funded voluntary program to monitor the existence or progression of asbestos-related diseases
constituted medical treatment that extended the jurisdictional limitations period for a reopener. The
Appellate Division reasoned that an application for reopener is not barred if the monitoring examinations
constitute payments within the meaning of N.J.S.A. 34: 15-27.
Exxon argued that because the monitoring examinations were not tied to Milos's award of workers'
compensation benefits, they should be considered a voluntary payment. The court disagreed, finding that
treatment need not be given pursuant to an award in order to qualify as payment; the test is whether the
treatment is required under the Workers' Compensation Act. The treatment need not have been actually
awarded, it need only be statutorily required. The Appellate Division found it irrelevant that other
employees, who were not suffering from asbestos exposure, also received monitoring examinations. The
court found that, because those employees are not injured workers, the monitoring examinations, as applied
to them, are not treatment required by statute. In those specific instances, the monitoring examinations are
a voluntary benefit.
The Appellate Division concluded that Milos's last monitoring examinations occurred less than two
years before the second claim petition was filed; therefore, the limitations period contained in the statute is
extended. The Appellate Division considered this result to be consistent with the purposes of the Workers'
Compensation Act.
The Supreme Court granted certification.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge
Rodriguez's written opinion below. The monitoring examinations Walter Milos underwent, pursuant
to the Exxon Asbestos Surveillance Program, constitute payments within the meaning of N.J.S.A.
34:15-27. Therefore, Milos's amended application for a reopener was not time-barred.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in this opinion. JUSTICE GARIBALDI did not participate.
SUPREME COURT OF NEW JERSEY
A-
81 September Term 1995
WALTER MILOS,
Petitioner-Respondent,
v.
EXXON COMPANY, USA,
Respondent-Appellant.
Argued January 29, 1996 -- Decided February 22, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
281 N.J. Super. 194 (1995).
Richard V. Jones argued the cause for
appellant (Bressler, Amery & Ross,
attorneys).
Jerry M. Finn argued the cause for respondent
(Schneider, Goldberger, Cohen, Finn, Solomon,
Leder & Montalbano, attorneys).
PER CURIAM
The judgment is affirmed, substantially for the reasons
expressed in the opinion of Judge Rodriguez of the Appellate
Division, reported at
281 N.J. Super. 194 (1995).
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
STEIN and COLEMAN join in this opinion. JUSTICE GARIBALDI did
not participate.
NO. A-81 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
WALTER MILOS,
Petitioner-Respondent,
v.
EXXON COMPANY, USA,
Respondent-Appellant.
DECIDED February 22, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY