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Belanowitz v. Travelers Insurance Co.

Decided: January 3, 1940.

JOHN BELANOWITZ, PETITIONER-DEFENDANT,
v.
TRAVELERS INSURANCE COMPANY, A CORPORATION, RESPONDENT-PROSECUTOR



On certiorari.

For the respondent-prosecutor, James J. Skeffington.

For the petitioner-defendant, David Roskein and Walter X. Trumbull.

Before Justices Parker, Bodine and Perskie.

Bodine

BODINE, J. This writ of certiorari brings up for review a judgment in the Court of Common Pleas determining that a judgment entered in the Workmen's Compensation Bureau on January 17th, 1939, in favor of John Belanowitz, a former employe of the bankrupt concern of A. Fishman Hat Company, Inc., should be entered against the prosecutor, the Travelers Insurance Company, at one time a workmen's compensation carrier for the bankrupt.

The prosecutor's standard workmen's compensation policy expired October 1st, 1933. The first proceedings in this matter were heard May 25th, 1934, before Commissioner Charles E. Corbin. It then appeared that the workman had complained in June, or perhaps later, but within the period covered

by the prosecutor's policy, of symptoms of mercurial poisoning, an occupational disease. On November 3d, 1933, he ceased work and it is the contention of the prosecutor that under the decision of the Court of Errors and Appeals in Textileather Corp. v. Great American Indemnity Co., 108 N.J.L. 121, the liability occurred upon that date and beyond the time covered by its policy.

Commissioner Corbin found as follows: 1. That the petitioner while in the employment of the respondent contracted the compensable occupational disease of mercury poisoning. 2. That the respondent had both notice and knowledge of the contraction of the compensable occupational disease within the time required in the workmen's compensation provisions of chapter 95, laws of 1911 and supplements thereof and amendments thereto. 3. That the petitioner's average weekly earnings for the last six months were $23.10 a week, and he being a piece worker, his compensation rate therefore would be $15.40 a week. 4. 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 3d, 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 therefore be paid one and four-sevenths 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. 5. That the petitioner suffered a permanent disability as the result of his contraction of the occupational disease of mercury poisoning equivalent to twenty-five per cent. of total permanent disability or one hundred and twenty-five weeks at $15.40 a week, amounting to $1,925."

Commissioner Corbin found the workman diseased in June, 1933, but notwithstanding employed till November 3d, 1933. In the 1939 hearing, the basis for the proceeding under review, no testimony, the basis of the judgment, was returned

with the writ if any was taken, nor was the carrier present or represented. The 1939 finding of disability presumably was based upon an ex parte affidavit. The finding was as follows: "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 3d, 1933, at which time he ceased work completely." It was further found: that the petitioner was employed by the Hat Company and contracted mercurial poisoning by reason of his exposure to a solution containing mercury, and became disabled therefrom during the week of June 12th, 1933, which time was fixed as the commencement of his disability, and that he was now totally and permanently disabled.

The 1934 finding and judgment seems to have been a consent affair, and the compensation fixed was paid by ...


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