Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Petitioner was awarded compensation for an occupational disease by the Division of Workmen's Compensation. On appeal, the Essex County Court reversed on the sole ground that petitioner had failed to give notice to the respondent of the contraction of the disease "within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment," as required by N.J.S.A. 34:15-33. Respondent defends the result not only on the ground of decision relied on by the County Court but also on the contentions that the claim was barred by limitations and substantively not attributable in entirety to the particular employer charged therefor in the Division.
Petitioner is 61 years of age. He is concededly suffering from silicosis caused by exposure to dust in his employment as a molder. That has been his occupation almost continuously from 1918 until August 4, 1954. A proper understanding of this case requires setting forth the respective periods of petitioner's employments in this occupation.
1918-1923 A.P. Smith Company
1923-1942 Jenkins Foundry (During this period he re-
turned to A.P. Smith Company for about
2-28-52 Phoenix Brass Fittings Co.
6-15-53 Edward A. Zusi Brass Foundry
7-6-53 Krouse-Doremus Foundry
8-4-54 A.P. Smith Company
On August 4, 1954 petitioner was disabled at work by an accidental injury to his back. On October 4, 1954 he retained his present counsel, a conceded specialist in workmen's
compensation law, to represent him in that connection, and the latter concluded from his employment and medical history and symptoms that he had silicosis. Petitioner had previously been informed that he had a disease having that name. The attorney informed petitioner what the disease was and that it was compensable and advised him to file a claim against A.P. Smith Company "on the theory," in the language of counsel's explanation to the Deputy Director, "that the last employer is responsible for the disability for an occupational disease." Accordingly, on October 11, 1954, petitioner filed a claim petition in the Division against the A. P. Smith concern. Hearings were held thereon July 21, 1955 and September 21, 1955. On the latter day the Deputy Director delivered an oral opinion dismissing the claim on the ground that petitioner had not sustained his burden of establishing that any part of the existing silicosis disability was attributable to his employment with that company. There was an express finding that petitioner was not actually exposed to silica or other foreign bodies during that employment. No appeal was taken from this determination.
There apparently had been medical testimony on the first hearing day to the effect that x-rays taken near the commencement and termination of the employment period with A.P. Smith Company disclosed a constant silicosis condition during that period. Petitioner's counsel represents to the Court that since this testimony, together with information indicating that the respondent in that proceeding would establish that petitioner was not exposed to silica dust while in its employ, satisfied him that the petition would be dismissed, he decided to advise petitioner to file at once separate claim petitions for the occupational disease against these other employers implicated in the occupational history, Phoenix Brass Fittings Co., Edward A. Zusi Brass Foundry (present respondent), and Krouse-Doremus Foundry. Such petitions were filed August 6, 1955 and served September 8, 1955. It is conceded that no prior notice of this claim was ever served on the present respondent and that it never had
actual knowledge during petitioner's period of employment with it (March 13, 1952 to June 15, 1953) that he had contracted silicosis. The same insurance company, however, covered all of the employers herein mentioned for workmen's compensation and has defended against each of the claims.
Medical testimony by Dr. Saul Lieb on behalf of petitioner in the present proceeding was to the effect that an examination on December 22, 1954 indicated "advanced second stage silicosis with emphysema," the consequent disability being estimated by the witness at 50% of total. A re-examination by the same physician July 2, 1956 showed the same general condition, but with increased disability, estimated at two-thirds of total. The witness gave it as his opinion "that the silicosis and emphysema in this case represents the sum total of all the exposures in [petitioner's] work as a molder and [in?] various foundries over a period of years." The Deputy Director dismissed the petitions against the employers other than Edward A. Zusi Brass Foundry on the ground that, while "the silicosis appears to have been in progress over a period of many years," the disability "became fixed" during the Zusi period of employment rather than the others. An award of 40% of partial permanent was entered against respondent. The Deputy Director held the claim not barred by the Statute of Limitations "and that the respondent had notice and knowledge of the injury under the provisions of the Compensation Act." There was no elaboration or specification of this finding.
On the appeal by the respondent, the County Court found it necessary to consider only the question as to whether the claim was barred by either the limitations or notice of claim provisions of the statute respecting compensation for occupational diseases. The former, N.J.S.A. 34:15-34, so far as here material, requires the filing of a claim
"within two years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease * * * or within one year after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration."
The notice of claim provision is to be found in N.J.S.A. 34:15-33, which reads as follows:
"Unless the employer during the continuance of the employment shall have actual knowledge that the employee has contracted a compensable occupational disease, or unless the employee or someone on his behalf or some of his dependents, or someone on their behalf, shall give the employer written notice or claim that the employee has contracted a compensable occupational disease, which notice to be effective must be given within a period of five months after the date when the employee shall have ceased to be subject to exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration, no compensation shall be payable on account of the death or disability by occupational disease of the employee."
It has already been noted that there is no contention or showing that respondent had "actual knowledge" of petitioner's disease while he was employed there. Nor is it contended that respondent had such imputed knowledge as would excuse the failure to give notice. Cf. Panchak v. Simmons Co. , 15 N.J. 13 (1954). Respondent had no notice or knowledge of this claim until it was served with the claim petition September 8, 1955. This was more than five months after cessation of petitioner's exposure to the dust at the Zusi foundry, and, consequently, the claim is barred under the notice of claim provision if it is properly to be found that petitioner "knew or ought to have known the nature of his disability and its relation to his employment" on or prior to June 10, 1955 (90 days prior to September 8, 1955). And, under the limitations provision, the claim is barred if petitioner "knew or ought to have known the nature of his disability and its relation to his employment" on or prior to August 6, 1954 (one year prior to the date of filing the petition). The County Court found that petitioner did not have the degree of knowledge specified by the statute prior to the time when he consulted his attorney in reference to filing his first claim for occupational disease, against A.P. Smith Company, in October 1954 but that he did gain such knowledge at that time. It
consequently held that, while the claim was not barred by lateness in filing the petition, it was for lateness in notifying respondent of the claim.
On the present appeal respondent justifies the result below not only on the ground relied upon by the court but also on the basis of the limitations provision. Additionally, it submits the contention that petitioner's condition cannot impute liability to respondent; that the evidence requires the conclusion either that petitioner's disability "largely antedated" his employment with respondent or else that it did not flower into "actual incapacity" until after the employments either with Krouse-Doremus or A. P. Smith, either hypothesis assertedly negativing liability insofar as Zusi is concerned.
The following excerpts from the County Court's careful and objective recital of the facts concerning petitioner's ailment will have relevance in respect to the matters of timeliness of notice and limitations, as well as to respondent's substantive responsibility if the other defenses are rejected.
"John Bucuk was born in Poland. His formal education there consisted of six or eight months of schooling. He migrated to the United States in 1912. His first recourse to a physician occurred in December 1952, when 'I catch some cold and from that time I just start to cough and cough and cough.' He also had a fever. It will be noted that he was then employed by respondent. He went to Dr. Kimmel and after five weeks he felt better and returned to work. There was no further treatment. He testified that he had no idea at the time of the cause of his trouble. As previously related, he remained in the employ of Zusi until June 15, 1953, at which time he was involved in a layoff.
On June 25, 1953 he went to work for Krouse-Doremus. After a few days there he began to feel sick and he stopped work on July 6. He consulted Dr. Macarcheck who ultimately had him admitted to Mountainside Hospital. Apparently the doctor treated him for a little more than four months. The petitioner averred that he did not know what was wrong with him at that time; he was coughing and had a fever, and he identified the condition as being the same as he had had previously. He did not ask the doctor what was wrong, nor did the physician define his trouble, save to tell him that 'it is a fever, to do this and that, and you will get better.' While he did not know what was wrong with him, he entertained some notions from time to time that it was somehow connected with his work. For instance, it appears in the testimony
given by him in the A. P. Smith case that when he consulted Dr. Macarcheck he said that he worked in a foundry and that 'a lot of that dust and heat has gotten me.' He admitted in his current testimony that he had 'probably' so testified though he had previously hedged by testifying in this wise:
'Q. When Dr. Macarchek treated you in 1954 you told him that you worked in a foundry and that you thought your condition was due to the dust and the heat in the foundry, didn't you? A. I don't tell him anything. I ask him what is wrong with me. He says, I have fever and probably from cold or something like that, but --
'Did you tell him you worked in a foundry? A. Yes, I told him.
'Q. Did you tell him that you worked in a dusty atmosphere? A. I didn't tell him about dusty. I told him I worked in a foundry.'
He admitted that when he was in Mountainside Hospital he thought that his condition was probably due to his work, though he had not discussed the situation with anyone other than his wife, 'but she don't know much about cases.' When he was asked what was the basis of his thought, he replied, 'Well, I just think it may be from work.' When further questioned, he revealed his thinking in these words, 'Because how can I get that sick if I don't work. It must be from work.'
'Q. And when Mr. Oeser suggested that you do outside work you and he both knew it was because working for A.P. Smith Company was dangerous to your chest ...