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Masko v. Barnett Foundry & Machine Co.

Decided: January 9, 1959.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.


Andrew Masko filed petitions for workmen's compensation benefits under the occupational disease statute, N.J.S.A. 34:15-31, against three former employers, M.H. Detrick Co., Atlas Foundry Co. and Barnett Foundry & Machine Co. After a hearing in the Workmen's Compensation Division, the Deputy Director dismissed the petitions, principally on the ground that the petitioner had failed to sustain the burden of proof. On appeal to and trial de novo before the Essex County Court, the dismissal as to M.H. Detrick Co. and Atlas Foundry Co. was affirmed, but the judgment in favor of Barnett Foundry & Machine Co. was reversed and an award made in favor of the petitioner. The respondent, Barnett, appeals from the judgment entered against it, and the petitioner cross-appeals from the dismissal against Detrick and Atlas in the contingency that they are to be held liable with Barnett.

The petitioner is admittedly totally and permanently disabled by reason of incurable active tuberculosis. Masko claimed, and the County Court found, that the tuberculosis had been dormant and latent; that during his employment as a molder by each of the respondents he was exposed to silica dioxide causing silicosis, an occupational disease, which in its progressive third stage activated the dormant tuberculosis; that both were causally related to his disability which occurred from and after February 17, 1955 when he was in the employ of Barnett. The court found that "because of petitioner's susceptibility, the condition in the respondents' plants each contributed to and were sufficient to have caused petitioner's silicosis to progress to third stage and flare up." On February 17, 1955 the petitioner also suffered from an attack of virus pneumonia, disconnected from his employment, and which the court declared probably also contributed to his physical break-down. Appellant Barnett, however, claims that the petitioner's conceded disabled state arose from the virus pneumonia and that the petitioner failed to prove any causal relationship between his disability and his work with the respondents. All three

of the respondents are insured by the same workmen's compensation insurance carrier.

Typical of many workmen's compensation cases, there is a sharp division of medical opinion in this case between the physicians for the petitioner and respondents' medical witnesses. There is no disagreement as to his existing disability, only as to whether the necessary causal relation between it and the employment exists. See Gargiulo v. Gargiulo , 13 N.J. 8, 12 (1953). Nor is there any substantial disagreement concerning the nature of the petitioner's work and the surroundings in which it was performed.

Our duty is to study the entire record, to weigh the evidence and to determine whether the petitioner has sustained the burden of proving by a preponderance of the probabilities that the silicosis from which he suffered arose out of and in the course of his employment, N.J.S.A. 34:15-31, and whether this was one of the contributing causes which activated the dormant tuberculosis. Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958); Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 447 (1958); Ciuba v. Irvington Varnish & Insulator Co. , 27 N.J. 127, 139 (1958); Bober v. Independent Plating Corp. , 28 N.J. 160, 168 (1958).

The petitioner, about 61 years of age, is a molder by trade and has worked in a number of foundries for about 44 years. Insofar as the three respondents are concerned, he worked for M.H. Detrick Co. for about a year and one-half, 1952-1954, when his employment terminated because of work shortage. He then worked for Atlas for three weeks in 1954 and left for the same reason. Finally, he was employed by Barnett Foundry on February 8, 1955, and worked for only nine days when he became ill and disabled on February 17, 1955.

Masko testified that in the foundries in which he worked over the 44 years, his job was always approximately the same. His descriptions of the work at the Detrick, Atlas and Barnett foundries, therefore, can be taken as descriptive

of the work which, over this long period, caused the development of silicosis. Apparently, he would mix non-toxic powder with clay, composed mostly of sand, which is silicate, beat it into a mold, and then spray away the excess particles with an air gun. The use of the air gun caused the powder, including graphite sometimes used as an abrasive to smooth the surfaces, to fly into his nose and mouth. The atmosphere would be filled with dust to such an extent that "one couldn't see the other worker." The inhalation caused petitioner to "cough very heavily, and I keep coughing until finally the forms are black, or the contents comes out either through my nose or through my mouth." In the Barnett Foundry where petitioner last worked and where he became ill, he made large castings by the same process and used black powder with a brush and air hose. Masko further testified:

"And as it blew, it all went up to my face * * * I coughed, and the black -- could I say mucus? * * * Phlegm, until [I] felt the little breathing coming through. Through the nose and through the mouth."

At which stage in his 44-year career as molder the disease began, it is impossible to say. The medical testimony indicates that it is a cumulative disease, progressing in severity as ...

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