For the prosecutor, Edwin Joseph O'BRIEN.
For the respondent, George A. Douglas.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Asserting that he contracted, while in the employ of prosecutor, an occupational disease, through the infection of lead poison, respondent, Sims, claims compensation for the resultant disability under the provisions of the Workmen's Compensation act. Pamph. L. 1911, p. 134, as supplemented by chapter 124 of the laws of 1924 (Pamph. L. 1924, p. 230), and the amendment thereof. Pamph. L.
1931, p. 76. The evidence adduced by respondent at the hearing tended to show that he is so afflicted. When he rested his case, the referee, on prosecutor's motion, dismissed the petition upon the ground of non-compliance with the provisions of paragraph 22 (d) of the act. Pamph. L. 1924, p. 232. The referee's findings of fact were that the employer did not have, during the continuance of the employment, actual knowledge that Sims had contracted the mentioned disease, and that written notice thereof, the alternative, was not given within the time prescribed, i.e., within a period of five months after the date when he ceased to be subject to exposure to the disease in question.
Sims appealed to the Essex Common Pleas. There the judgment was reversed, and the cause remanded to the compensation bureau for trial on the merits. There was a finding of fact in the former tribunal that the employer had actual knowledge, within the intendment of the statute, that Sims had contracted the disease in question -- such information as would lead "reasonable men to conclude that the employe, during his employment, had lead poisoning." The jurisdiction of the pleas was questioned, but the challenge was overruled. The ground of challenge was that the statutory right of appeal to the court of common pleas is limited to cases in which the claimed compensable disability is the result of an "accident," as distinguished from an occupational disease. Pamph. L. 1932, p. 38. The employer sued out a writ of certiorari to review this judgment.
The claim that the proceeding in the pleas was coram non judice is devoid of merit. Disability consequent upon an occupational disease was not compensable under the original act of 1911, supra. The benefits of the act were confined to those who suffered disability resulting from an "accident," which, in its strict technical sense, excludes an occupational disease. Bryant v. Fissell, 84 N.J.L. 72; Smith v. International High Speed Steel Co., 98 Id. 574; Liondale Bleach Dye and Paint Works v. Riker, 85 Id. 426. Under that statute, jurisdiction to determine the claim for compensation was vested in the judge of the Court of Common Pleas of
"such county as would have jurisdiction in a civil case." Pamph. L. 1911, p. 141, § II, P18. By chapter 149 of the laws of 1918 (Pamph. L. 1918, p. 429), the original jurisdiction was committed to the workmen's compensation bureau, created by the act. Paragraph 19 of that act provided for an appeal to the Court of Common Pleas "of the county in which [such] hearing was held." By the act of 1924, supra, in form a supplement to the original act, certain enumerated occupational diseases were, under prescribed conditions, declared to be compensable. This act incorporated into section II of the original act a paragraph, numbered 22 (f), providing that "all provisions of section II and section III applicable to claims for injury or death by accident shall apply to injury or death by compensable occupational disease, except to the extent that they are inconsistent with the provisions contained in paragraphs 22 (a) to 22 (f), both inclusive." Thus the provisions of the act conferring the right of appeal to the Court of Common Pleas were made applicable to all proceedings instituted to enforce the payment of compensation for disability resulting from occupational disease.
In 1931, by an amendment to paragraph 19 of the supplement of 1918 to the original act, supra, the legislature enacted that a judgment of the compensation bureau "shall be reviewable by certiorari only." Pamph. L. 1931, pp. 708, 1217. The following year, in an apparent endeavor to revive the provision for appeal to the Common Pleas in all such cases, the legislature, again by an amendment to paragraph 19 of the supplement of 1918, supra, provided for an appeal from a judgment of the compensation bureau to the Court of Common Pleas "of the county in which such accident occurred * * *." Pamph. L. 1932, p. 38. This provision thereby became a part of section III of the original act, and by force of paragraph 22 (f), incorporated into the act ...