Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[50 NJSuper Page 470] Fireman's Fund Indemnity Company (Fireman's) and London & Lancashire Indemnity Company (London & Lancashire) appeal from a County Court judgment sustaining an award by the Workmen's Compensation Division in petitioner's favor, but modifying the allocation of liability for the award and for the cost
of surgical intervention to correct the condition existing in petitioner's left shoulder. Travelers Insurance Company (Travelers) cross-appeals.
Petitioner is admittedly suffering from a compensable disability arising out of and in the course of his employment by his respondent employer, Automatic Sprinkler Company. The Division's determination of the amount of partial permanent disability is not in dispute. The only question requiring decision on this appeal involves the allocation of liability among and between the three insurance companies, each of whom, successively, happened to be the insurance carrier at the time of one of petitioner's three accidents while in the employ of Automatic Sprinkler. Petitioner does not appeal, nor does the employer. However, petitioner filed a brief seeking immediate payment of the award regardless of the manner of apportionment. To this he was entitled. As was said in Cunliffe v. Deslauriers Column Mould Co. , 5 N.J. Misc. 1037, 1039, 139 A. 411 (Sup. Ct. 1927), "the employee has only to look to the employer for compensation. His case ought not be prejudiced by a change of insurance companies." We are informed that he is now being paid the award, so that no further reference need be made to his request.
On June 30, 1952 petitioner was drilling a hole in a ceiling, the drill chipped, and a piece of steel lodged in his left mid-bicep area. Fireman's was on the risk at the time. Petitioner was treated every day for about 2 1/2 weeks by a Dr. De Luca, who would fluoroscope him for 20 to 30 minutes at a time until the metal was located and removed. Following this exposure to fluoroscopy the skin in back of petitioner's shoulder became red and began to rot away. Although the condition ostensibly cleared up, it left scars.
The second accident occurred on September 16, 1953 when petitioner's left anterior forearm was pierced by a steel chip slightly below the elbow. He was again fluoroscoped by Dr.
De Luca for three days, each time for 20 to 30 minutes, and the metal located and removed. A condition of the skin behind the elbow, similar to that which occurred after the fluoroscopy attendant upon the first accident, followed the second exposure, with resultant scars. London & Lancashire was the insurer on this risk.
Petitioner filed separate claim petitions seeking compensation for these two accidents. The petitions were consolidated for trial and on March 25, 1955 the Workmen's Compensation Division awarded 5% of permanent total disability of the left arm for the first accident and 7 1/2% of permanent total of the statutory left hand (plus 2/7ths of a week temporary benefits) for the second accident. There was no appeal.
The third accident occurred April 13, 1956, when the insurer was Travelers. Petitioner was screwing two pieces of pipe together when his chain tongs slipped and his left elbow struck a steel beam. The point of impact was about an inch below the elbow on the anterior side. He stopped work for about half an hour, the pain subsided, and he then resumed working. There were no immediate manifestations of the injury; there was no break in the skin; "everything appeared to be all right." Petitioner reported the accident to his foreman. Five days later the area began to get sore, and the following day a "big hole" appeared at the elbow. Petitioner consulted a Dr. Higi who found two areas of radiodermatitis, characterized by atrophy and telangiectasia (growth of new blood vessels) in the left deltoid area (shoulder), left elbow and upper part of the left forearm. He also found an area of abrasion over the olecranon process of the left elbow, with considerable secondary infection characterized by edema, redness and heat. He treated petitioner for several weeks with wet packs, penicillin and ultraviolet ray. The inflammation responded slowly, the swelling subsided and the secondary infection cleared up, but the original area of the trauma (third accident) did not respond.
Dr. Higi became suspicious when the affected area grew larger, and consequently he performed a biopsy which showed
a squamous cell carcinoma. Realizing that plastic surgery was necessary, he referred petitioner to Dr. Conroy, a plastic surgeon. Dr. Higi's final diagnosis was radiodermatitis with squamous cell carcinoma, complicated by secondary infection. He attributed the radiodermatitis, which he said was incurable, to the exposure to fluoroscopy, and stated that the condition was a frequent cause of squamous cell carcinoma -- "That's the danger sign." He said, further, that the abrasion to the elbow caused by the third accident provided the "portal of entry for the infectious process." Dr. Higi emphasized that no one gets radiodermatitis unless he is exposed to radiation, and that the two parts of petitioner's body which were so exposed had sustained that condition.
Dr. Conroy, to whom petitioner was referred by Dr. Higi, performed plastic surgery on the left elbow, excising a large ulcerated area together with surrounding damaged skin which showed radiation changes, applied a pedicle flap (skin graft) directly from petitioner's chest to the area, and then repaired the chest with a further graft from the right thigh. His diagnosis was squamous cell carcinoma of the skin and radiodermatitis of the left shoulder and left elbow, with ulceration of the elbow. He stated that radiodermatitis will, as a general rule, eventually progress to ulceration, breakdown and squamous cell carcinoma, and that in his opinion the third accident was just an "incidental thing." However, in ...