Belanowitz v. Travelers Ins. Co.

• Decision Date: 10 October 1940
• Docket Number: Nos. 42, 43.,s. 42, 43.
• Citation: 15 A.2d 745,125 N.J.L. 301
• Parties: BELANOWITZ v. TRAVELERS INS. CO.
• Court: New Jersey Supreme Court

15 A.2d 745

125 N.J.L. 301

BELANOWITZ

v. TRAVELERS INS. CO.

Nos. 42, 43.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Syllabus by the Court.

1. A judgment of the Workmen's Compensation Bureau in a proceeding to which an insurance carrier is not a party and entered after a hearing at which the carrier is not afforded an opportunity to be heard, while res judicata as to the liability of the employer to pay compensation, is not res judicata as to the liability of the carrier under its policy of insurance.

2. Under R.S. 34:15-86, N.J.S.A. 34:15-86, which provides that after insolvency or bankruptcy of the employer the carrier shall be "directly" liable for payment of compensation, all proceedings subsequent to the bankruptcy of an employer which are designed to secure a judgment for which the insurance carrier will be sought to be held liable must be directly against the carrier.

3. Where, as here, there was an award for partial permanent disability as the result of industrial disease, which award fixed the time of disability at a date not within the coverage of the insurance carrier's policy, and which award was paid in full by the employer, and where, after the employer was adjudged bankrupt, a petition for increase of disability was filed nominally against the bankrupt employer, and after an ex parte hearing an award for increase was made, which award fixed the time of disability at a date within the coverage of the carrier's policy, such an award is not conclusive upon the insurance carrier in a subsequent proceeding in the Common Pleas Court to hold the carrier as in a case where the employer fails to make payment, the insurance company not having been made a party to any of the proceedings in the Bureau where the facts to establish its liability were found.

Appeal from Supreme Court.

Proceeding by John Belanowitz against the Travelers Insurance Company to recover the amount of compensation awarded petitioner by the Workmen's Compensation Bureau for total permanent disability. A judgment for petitioner, 17 N.J.Misc. 151, 6 A.2d 665, was reversed and set aside by the Supreme Court on certiorari, 123 N.J.L. 574, 10 A.2d 178, and petitioner appeals.

Judgment of Supreme Court affirmed.

David Roskein and Walter X. Trumbull, both of Newark, for defendant-appellant.

James J. Skeffington, of Newark, for prosecutor-respondent.

DONGES, Justice.

These appeals bring up a judgment of the Supreme Court entered on cross-writs of certiorari in a workman's compensation case. The Supreme Court reversed a judgment of the Essex County Court of Common Pleas awarding the appellant compensation for 100 per cent. of total permanent disability growing out of an occupational disease. The proceeding now under review was instituted under R.S. 34:15-82 et seq., N.J.S.A. 34:15-82 et seq., against the respondent insurance company and the dispute is as to whether or not the policy of insurance issued by respondent, which expired October 1st, 1933, covered the loss.

The facts appear to be that the appellant was employed by the A. Fishman Hat Co. and contracted the occupational disease of mercurial poisoning, or "hatters shakes." He filed a petition for compensation with the Bureau, although such petition is not contained in the record nor is its filing date stated. The matter came on for hearing on June 4th, 1934, before a deputy commissioner. It appears from the colloquy of counsel at the commencement of this hearing that the respondent here, Travelers Insurance Company, had had notice of the claim for compensation, had disclaimed liability under its policy and did not appear at or take part in the hearing. The opinion of the Supreme Court expresses the view that this proceeding in the Bureau was one by consent, but we think the record does not support this holding in view of the statement by counsel for the Hat Company that he could not enter into a consent judgment because of danger of prejudicing any claim the Hat Company might have against the Travelers Insurance Company. Many of the facts, however, were stipulated. Testimony was taken and an award made.

In his determination of facts and rule for judgment the deputy commissioner found that appellant had contracted mercury poisoning and was entitled to compensation for permanent disability to the extent of 25 per cent. of total. He further said: "4. I do find that the disability, as the result of his contraction of the occupational disease of mercury poisoning commenced on or about the month of June, 1933, but even though he was disabled from that time until November 3, 1933, when he finished, and beyond that up until November 21st, 1933, that inasmuch as he was employed during this period of time and paid his wages (piece work earnings) he is not entitled to any temporary compensation for that period of time. For temporary disability the petitioner will therefor be paid 1-4/7 weeks at $15.40 a week, amounting to $24.20, the petitioner having been compensably temporarily disabled for less than seven weeks, the waiting period of seven days under the statute is deducted."

The award, both for temporary disability and for partial permanent disability, was paid in full not by the Travelers Insurance Company but by the employer, A. Fishman Hat Co., and after it was paid in full, it seems to be agreed, that company was adjudged bankrupt.

More than four years later appellant filed a petition alleging that his disability had increased and seeking an increase in his compensation award. On January 17th, 1939, a deputy commissioner, other than the one who made the first award, made a determination that appellant was 100 per cent. totally and permanently disabled. This determination recites that the hearing was ex parte, there being no appearance on behalf of the A. Fishman Hat Co. The insurance company was not a party to this proceeding, nor was it given any notice of it or given notice that appellant would seek to enforce against it any award made. The deputy commissioner in his determination of facts and rule for judgment held: "I further find as a fact that by reason of such mercurial poisoning contracted by the petitioner, in the respondent's employ, he became disabled therefrom, during the week ending June 12th, 1933. The contraction of the said mercurial poisoning while in the respondent's employ, caused the petitioner to become disabled and prevented him from carrying on his work as a hat sizer at the respondent's plant for four days during the week ending June 12th, 1933; he was disabled for four days during the week ending June 19th, 1933; and during the week ending June 24th, 1933, he was disabled for three days during the usual working week. Subsequent to the week ending June 24th, 1933, at the solicitation of his superior, he returned to work because the plant was quite busy. However, he was unable to put in a full eight hours work and invariably he ceased working after six or seven hours because of his disability due to the mercurial poisoning which he had contracted. Petitioner worked in the manner heretofore outlined, from the week ending June 24th, 1933, until November 3rd, 1933, at which time he ceased work completely."

And further: "On the basis of all the evidence adduced before me at this hearing, I find as a fact that the petitioner was employed by the respondent and contracted mercurial poisoning by reason of his exposure to a solution containing mercury,...