Calabria v. Liberty Mut. Ins. Co.

• Decision Date: 14 February 1950
• Docket Number: No. A--74,A--74
• Parties: CALABRIA v. LIBERTY MUT. INS. CO. et al.
• Court: New Jersey Supreme Court

Page 64

4 N.J. 64

71 A.2d 550

CALABRIA v. LIBERTY MUT. INS. CO. et al.

No. A--74.

Supreme Court of New Jersey.

Argued Jan. 16, 1950.

Decided Feb. 14, 1950.

Francis X. Kenneally, Newark, argued the cause for petitioner-respondent (Joseph P. Dunn, Newark, attorney.

John W. Taylor, Newark, argued the cause for Liberty Mut. Ins. Co.

Joseph Coult, Newark, argued the cause for Hartford Accident & Indemnity Co. (Wilbur A. Stevens, Newark, attorney.

Arthur F. Mead, Newark, argued the cause for Employers' Mut. of Wisconsin (Cox & Walburg, Newark, attorneys.

The opinion of the court was delivered by

CASE, J.

This branch of the litigation arises from a dispute between insurers as to their respective obligations by reason of successive coverages under the Workmen's Compensation act. The injured workman is a party and is represented, but it is conceded that he has established a condition of chrome poisoning due to his employment by Martin Dennis Co.

Calabria's employment by Martin Dennis Co. began February 18, 1942, and, except for a plant lay-off of four months--July to November, 1946--continued until the hearing of his claim by the Workmen's Compensation Bureau in January, 1948. He suffers from chrome poisoning due to that employment. The exposure to chrome fumes and dust continued throughout his employment. The disability consisted of an aperture in his nasal septum. He was not obliged to quit work at any time but was found to have a permanent partial disability amounting to six per centum of total and to be entitled to compensation for 33 weeks at $25 per week.

During the employment, Martin Dennis Co. was insured successively by three insurance carriers. The Liberty Mutual Insurance Company, against whom the judgment stands, having insured from an unnamed date which we are left to assume was prior to the employment, ended its coverage on November 28, 1946; the Hartford Accident and Indemnity Company carried the risk from November 29, 1946, to January 8, 1947, and Employers' Mutual of Wisconsin from January 8, 1947 forward. On August 22, 1946, the employer was notified by counsel for Calabria and forty fellow employees similarly situated that claim was being made for compensation because of chrome poisoning, and occupational disease, arising out of and in the course of the employment. The formal claim petition was signed by Calabria on December 20, 1946, although it was not filed until later; and on the same day, December 20, 1946, Calabria was examined by a physician employed by the Liberty Mutual and by a physician employed by Calabria in the presence of the Deputy Director and of counsel for Liberty Mutual and for Calabria. Negotiations toward settlement were unsuccessful, and later the formal petition was filed, bringing in the employer and all three insurers, Brown v. Conover, 116 N.J.L. 184, 183 A. 304 (Sup.Ct. 1936), R.S. 34:15--84, N.J.S.A., and the matter put in process for the hearing which occurred on January 8, 1948.

The Workmen's Compensation Bureau found, as indicated above, a permanent partial disability chargeable against Liberty Mutual; and, on successive appeals, the judgment was affirmed by the Hudson County Court and by the Appellate Division.

Liberty Mutual presents on this appeal that the liability of the employer to pay compensation did not occur during Liberty Mutual's coverage (meaning that the liability did not arise until after such coverage was terminated), that a time certain must be fixed for the employer's disability and the employer's liability and that the courts below failed properly to construe and apply the statute and to make consistent findings of fact in accordance with the weight of the evidence.

Calabria made no claim for temporary disability. He could not because there had been no absence from work. After the disability arose he continued to work as theretofore and under like conditions of exposure to chrome poisoning. Therefore, since he had continued his employment with the same employer and had not ceased to be subject to exposure to the occupational disease, the notice, R.S. 34:15--33, N.J.S.A., and the claim, R.S. 34:15--34, N.J.S.A., were both within time. Herod v. Mutual Chemical Company of America,115 N.J.L. 369, 180 A. 432 (Sup.Ct. 1935); Stockheimer v. Carwin Co., 135 N.J.L. 49, 50 A.2d 145 (Sup.Ct. 1946). The expression 'injurious exposure', as used in the silicosis and asbestosis statute, ch. 88, Pamph. Laws 1944, R.S. 34:15--35.1 et seq., N.J.S.A., is not found in the sections just cited and may not be read into them.

Notwithstanding some proof, not controlling, that there had been a slight increase in the size of the perforation between the original examination and the hearing, the Bureau found as a fact that the claimant's disability, the perforation of the septum, occurred before November 28, 1946, that it became static while the Liberty Mutual was the carrier and that there had been little or no change in the disability down to the date of the hearing in January of 1948. That determination of fact met with like expressions in the courts on appeal. The County Court said, 63 A.2d 717, 719: 'That this aggravated state (viz., the condition at the time of the hearing) had been stationary for a period beginning well within the Liberty Mutual coverage is shown by petitioner's testimony that 'during the last two years it has remained about the same.' If there had developed after the Liberty Mutual's expiration date a further stage in the progress of petitioner's ailment of a gravity sufficient to add a new cumulative phase to the grounds for claim, the proofs do not show it. Stated another way, the claim petition was filed June 3, 1947; the case was heard on January 8 and 29, 1948; and there is nothing in claimant's condition as of either of these dates which is not shown to have been present on and prior to November 29, 1946.'

The Appellate Division said, 4 N.J.Super. 528, 68 A.2d 283, 284: 'The Bureau and the County Court found that the disability due to chrome poisoning occurred during January 1946 in the period of appellan...