On appeal from a judgment of the Supreme Court.
For the defendant-appellant, David Roskein and Walter X. Trumbull.
For the prosecutor-respondent, James J. Skeffington.
The opinion of the court was delivered by
DONGES, J. 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., 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 Co., 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 twenty-five 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 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 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 Co. 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. ...