Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[44 NJSuper Page 115] The petitioner in this workmen's compensation case was denied relief in the Workmen's Compensation Division. The County Court reversed, holding that he had sustained a permanent disability, namely, an 80% binaural loss of hearing, resulting from exposure to
noise produced by washing machines in the employer's plant. The employer appeals. It is conceded by the employer that loss of hearing, resulting from noise in the employment, is an occupational disease within the purview of the amendments to N.J.S.A. 34:15-30 and 34:15-31, effective January 1, 1950. See Larson, Workmen's Compensation (Cum. Supp. 1956), § 41.40, n. 26.
On the first argument of this case we passed upon certain factual questions raised by the employer. There remains to be considered whether the award can be sustained under the amendments cited, notwithstanding proofs, including an audiogram taken in 1945, which indicate that petitioner had definitely suffered a substantial impairment of hearing by that time, some five years before the amendments took effect. In fact, the employer contends that petitioner then had at least a 40% to 50% loss of hearing. In dealing with this question petitioner rests his case entirely on the theory that his hearing became progressively worse from sometime prior to 1945 until 1953 and that the right to compensation under the occupational disease statutes does not accrue until the disability reaches its "peak" and becomes "static." Reliance is placed on the quoted words which appear in Calabria v. Liberty Mutual Insurance Co. , 4 N.J. 64, at pages 69, 70, 71 (1950). However, Mr. Justice Case who wrote the opinion for the court in that case, did not embody these concepts in the standard which he laid down there, namely, that a partial permanent disability occurs when "a definite fault akin to a traumatic injury occurs" -- that is, when a definite impairment of bodily function or of a part of the body occurs. Further see Biglioli v. Durotest Corp. , 44 N.J. Super. 93 (App. Div. 1957), filed herewith.
Petitioner's theory is indicated by the response his counsel gave to a question put on the oral argument. We asked counsel to suppose a case where a defect in hearing, attributable to an employment, originated after January 1, 1950, and in 1952 increased to a definite permanent disability amounting to a 50% loss of hearing and then progressively
over a course of eight years after 1952, increased still further until it reached a peak of 80%, becoming static at that point. Petitioner's counsel answered, contending that no right to compensation with respect to any part of the permanent disability of 80% arose until 1960. We cannot believe that under the statute the employee is required to withhold his claim for the permanent disability until 1960.
The proofs in the instant case demonstrate that a definite "fault" or loss of hearing may have occurred in 1945. Are the occupational disease amendments applicable to this loss of hearing? Mnich v. American Radiator Co. , 263 App. Div. 573, 34 N.Y.S. 2 d 16 (App. Div. 1942), affirmed 289 N.Y. 681, 682, 45 N.E. 2 d 333 (Ct. App. 1942), is of some interest here, though we do not pass on the point there decided. The case held that a common-law cause of action for "injuries suffered" from silicosis up to the effective date of the Workmen's Compensation amendment (which first rendered silicosis claims compensable under the New York Compensation Law), was a vested right, which the Legislature did not intend to take away from the plaintiff when it adopted the amendment.
Petitioner relies upon Koval v. Natural Products Refining Co. , 25 N.J. Misc. 489 (Sup. Ct. 1947), in which Mr. Justice Case held that a disability consisting of a nasal perforation due to chrome poisoning did not arise until January 8, 1946. The question there presented was whether the disability should be calculated upon the 1945 schedule of compensation or upon the 1946 schedule which was more favorable to the petitioner. In December 1945, while receiving treatment for a back injury, petitioner called the doctor's attention to an itch in his nose , and the doctor then informed him that "there was a hole in it." But it was not until January 8, 1946 that the employee quit working, because he could "not stand it any more."
It is to be observed in connection with that decision, first, that Mr. Justice Case, when thereafter he came to write the opinion in Calabria , laid down as a part of the test that the "fault" must be "definite." In Koval , as we
understand it, there was no proof of a definite disability until January 8, 1946.
It is also to be observed in connection with Koval that, in accordance with the settled policy of the law, we construe and apply the Workmen's Compensation statute liberally, resolving doubts in the employee's favor. Gargiulo v. Gargiulo , 13 N.J. 8, 13 (1953). In accordance with this principle, the courts and the Division in a matter of doubt will tend to hold that a bodily impairment did not become definite until after January 1, 1950. So in Estelle v. Board of Ed. of Borough of Red Bank , 26 N.J. Super. 9, 23, 24 (App. Div. 1953), ...