On appeal from a judgment of the Supreme Court.
For the appellant, James J. Carroll.
For the respondent, Drewen & Nugent.
The opinion of the Court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court on certiorari in a workman's compensation case. The controversy is not between the workman and his employer as to the employe's right to compensation, which is conceded and has been paid, but between two insurance carriers as to liability for the compensation paid. The employe, William Domscheit, unquestionably is disabled to the extent adjudged by reason of an industrial disease known as chrome poisoning contracted as the result of exposure in the course of his employment.
Domscheit was employed by the Natural Products Refining Co. from August, 1928, until March, 1934. During all the time he was thus employed the workmen's compensation insurance was carried by the respondent on this appeal, New Jersey Manufacturers' Casualty Insurance Company, except
from November 18th, 1933, to December 17th, 1933, during which period the policy of the appellant here, American Mutual Liability Insurance Company, was in effect. During this period, as the result of complaints to his employer that he was not feeling well, Domscheit was examined by a physician of the American Mutual Company, Dr. Finn, and as a result of this examination his work was changed, on December 7th, 1933, from that of cooper, which brought him into close contact with the substance containing chrome, to outside labor in and about the yard of the employer.
The employe filed a petition for compensation with the Workmen's Compensation Bureau on March 17th, 1934. The New Jersey Manufacturers' Company filed an answer on behalf of the employer. The matter came on for hearing in the bureau on February 14th, 1936, at which time the petitioner appeared and was represented by counsel. The New Jersey Manufacturers' Company appeared by its attorney in defense to the claim. The situation with respect to the coverage by two insurance companies being explained to the deputy commissioner and the attorney for the New Jersey Company asserting his contention that the other carrier was liable, the deputy commissioner did not proceed with the hearing but suggested that the matter be continued and that the American Mutual Company be brought in.
The matter came on for hearing again on April 24th, 1936, when the petitioner and both insurance companies were represented. The petitioner testified to symptoms of the disease as far back as 1932 in the form of nose trouble. He further testified that he continued his regular employment down to December 7th, 1933, when as the result of the examination by Dr. Finn, his work was changed. Two physicians testified on his behalf as to the presence of the occupational disease and the extent of total and permanent disability. One of these based his testimony on an examination made December 13th, 1935, and the other on an examination made April 11th, 1935.
The New Jersey Company then presented its case which consisted of the testimony of two fellow employes of Domscheit, which is not important to the point under review here,
and that of a physician who examined the workman on April 19th, 1934, and again on April 31st, 1934. He testified that on those dates he found a perforation of the nasal septum due to chrome poisoning ...