Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
The petitioner appeals from a judgment of the Passaic County Court affirming a denial of an award by the Division of Workmen's Compensation for an alleged occupational disease. The lower tribunals denied compensation solely because of lack of timely notice of claim to the employer under N.J.S.A. 34:15-33.
Petitioner was employed by the respondent as a maintenance man, truck driver, and in miscellaneous other capacities from 1925 until January 1955. Between December 5, 1953 and January 9, 1955 he was assigned to work with a "lead man," Edward Sobala, in the operation of a "fogging" machine on 11 different occasions. The fogging operation involved the use of a machine on a hand truck that sprayed a mist or vapor containing a chemical insecticide known as Tifacide, composed of halogenated hydrocarbon, methylated naphthalene, gamma isomer of benzene hexachloride and perfumer. The purpose of the fogging was to prevent and eliminate the infestation of moths and moth larvae in the employer's woolen mills located at Garfield and Passaic, N.J.
While petitioner and his "lead man" Sobala (his immediate supervisor and co-worker) were engaged in fogging, the petitioner wore a filter mask which fit snugly, by means of an elastic band, over the middle of his nose, under the eyes, and under his lower lip. The fogging was scheduled at intervals of about four months and was performed on weekends when no production was scheduled. The various rooms were sealed, and signs were posted warning against entering the rooms during the fogging process. The density of the insecticide spray was regulated by the laboratory microscopist.
It was in January 1954 when Peraino first noticed a rash on his nose at "the top of the bridge and down here * * * where the mask used to fit tight." He testified that prior to January 1954 he never had a rash on any part
of his body. He said that while he did not believe it to be serious, Sobala had also seen the rash and had brought it to his attention as being "from the fogging." Sobala and Peraino went to the plant clinic at about that time, and Sobala showed the plant nurse the rash and told her it was "from the fogging" -- but nothing was done about it. The following month, February 1954, Peraino was at the plant clinic for treatment of an injured finger. While he was there Dr. Bongiorno, the plant doctor, observed his swollen and puffy nose and said, "Boy, you got a bad infection there." He gave petitioner some sulfa ointment to apply externally and some sulfa drugs to take internally.
In March 1954 petitioner consulted his family doctor who referred him to a skin specialist. The latter treated petitioner on about six visits. Since there was no improvement in the rash, Peraino went to see Dr. Sachs, a dermatologist, who was called as a witness on behalf of the respondent. Dr. Sachs first saw petitioner in September 1954. At about that time he developed a blotchy rash under the rib. He showed this to the plant nurse and she advised him to apply a baking soda solution at home. Petitioner testified that in November 1954 he "broke out with blotches all over my body, head, face, arms and legs, broke out all over." At that time he showed his condition to his foreman, Emil Neubert. Peraino asked him, "Possibly this could be from fogging," to which the foreman responded, "No, this couldn't be from the fogging."
In January 1955 petitioner went four times to the Skin and Cancer Unit of the New York University-Bellevue Medical Center in New York for examination, and later in the month he again became a patient of Dr. Sachs. Dr. Sachs testified that petitioner was "a very sick man," and from his examination he found that petitioner had lupus erythematosus (eruption of scaly red patches on the skin). In the latter part of January 1955 he was hospitalized at the Passaic General Hospital where he was treated by Dr. Sachs, who continued to prescribe for and treat petitioner
until March 1956. He said that he was familiar with Peraino's medical history. He testified that chemicals might not have been the direct cause of his condition but could have been the contributory cause, and that no one knew the real cause of lupus erythematosus.
After a leave of absence beginning in January 1955, petitioner returned to his work in September 1955 as a sweeper. He said his skin condition had improved until he went to get some mop oil from the shed where the fogging machine and insecticide were kept, following which the rash broke out on his leg.
Peraino was examined on three occasions in June 1956 by Dr. Roth, an internist, who testified the rash covered the nose and cheeks, the skin was somewhat atrophic, and the entire body was covered by a papular eruption with papules the size of coffee beans. Some of these papules were covered with scales; some were raw and bleeding. He diagnosed that petitioner had a rash of lupus erythematosus disseminatus. In a hypothetical question he was asked his opinion on whether the affliction was causally related to the employment either by way of direct causation, aggravation or acceleration. His answer was that, while the rash was not necessarily attributable to exposure to the chemicals, he believed that "the exaggeration of the rash * * * was due to exposure to the irritant chemicals." His opinion was, in effect, that Peraino originally had a small, localized, non-work-connected disease which became "profound" and disseminated by virtue of the employment. He explained that lupus erythematosus is a disease of the skin and that contact with the chemicals used in the fogging operation sensitized petitioner with the result that the rash became generalized and he began to have systemic manifestations of the disease. His opinion was based partially upon the elevation of the white blood count and the increased sedimentation rate. He said exposure to the chemicals is known to cause acceleration and exacerbation of lupus erythematosus.
Dr. Irving Shapiro, a dermatologist, examined petitioner in August 1955 and in June and October of 1956, and testified that petitioner presented a "widespread eruption * * * scattered over his face, scalp, chest, back, arms and legs." It was his opinion that Peraino was suffering from a toxic reaction of his skin due to exposure to and inhalation of poisonous fumes while at this work. He further said it was causally related to his exposure while fogging at respondent's plant. He was familiar with the chemical components of Tifacide and said they were primarily irritants and severe protoplasmic poisons. He did not agree with the diagnosis that petitioner was ...