Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
This is a workmen's compensation claim for occupational disease allegedly contracted by petitioner as a "burner" in the employ of respondent at its Hoboken yard since 1946. The petition was filed in August 1954. After hearings early in 1959 a determination adverse to petitioner was rendered by the Division of Workmen's Compensation July 29, 1959, and affirmed by the Hudson County Court May 6, 1960. There is no explanation in the record for the long delay in disposition of the matter in the Division beyond the apparent circumstance that this was one of a number of similar claims by other employees of the same employer.
Petitioner testified that he began work for respondent in good health, and after passing a physical examination. Part of his work involved burning metal on ships, sometimes oil-covered or painted, and in the closed compartments of ship bottoms. The resulting fumes began to make him sick, periodically, from late 1948 on. The symptoms, such as coughing, wheezing, running nose and bloody emissions from his throat, continued until his examination by Dr. Potter in 1954, about the time of the filing of the petition, and thereafter until and as of the period in 1959 when the hearings in this case were taking place. Dr. Potter found petitioner to be suffering from emphysema and other chest conditions.
The deputy director in the Division found that petitioner's disability arose in 1948; that the petition was barred by statutory limitations and also by the circumstance that if petitioner suffered, as claimed, from an occupational disease, it arose prior to the effective date of the act making all occupational diseases compensable, January 1, 1950 (L. 1949, c. 29; N.J.S.A. 34:15-30, 31), and was
therefore non-compensable under the act, according to the interpretive cases. McBride v. Royal Laundry Service, Inc. , 44 N.J. Super. 114 (App. Div. 1957); and see Biglioli v. Durotest Corp. , 26 N.J. 33 (1958). The County Court decided that the disability attained compensable status in 1948 and that the claim was barred for failure to file it within the statutory period.
We at once dispose of the issue of limitations. Both sides on this appeal agree that the claim is not barred by the statutory limitation for the dispositive reason that petitioner was still employed by respondent in the same kind of work as allegedly produced the disability, and thus still exposed to the same occupational disease, at the time he filed the petition. N.J.S.A. 34:15-34.
Respondent seeks to justify the result in the trial tribunals on three grounds: (1) petitioner's condition antedated the effective date of the occupational disease provisions of the act and is therefore non-compensable; (2) in the alternative, whatever condition petitioner has is not compensable because it has not yet produced disability equivalent to inability to work, asserted to be a prerequisite for compensability for this kind of progressive disease under the interpretation by this court of the statute and authorities in Bucuk v. Edward A. Zusi Brass Foundry , 49 N.J. Super. 187 (App. Div. 1958); certif. den. 27 N.J. 398 (1958); and (3) there was no causal relationship between the work and the condition.
There is no doubt that if petitioner's condition physiologically reached the stage at which an occupational disease is compensable as a matter of law, by a date antecedent to January 1, 1950, it cannot be the subject of a compensation award in this case. Prior to that date the act covered only such occupational diseases as were expressly scheduled therein, and petitioner's condition was not a disease so scheduled. Non-scheduled occupational diseases became compensable for the first time as a result of the enactment of the 1949 statute cited above, and since that act was solely
prospective in effect and did not by its terms take effect until January 1, 1950, it has been held that it covers only those conditions which arose (attained the physiological stage of compensability) subsequent to that date. McBride v. Royal Laundry Service, Inc., supra; Giambattista v. Thomas A. Edison , 32 N.J. Super. 103 (App. Div. 1954).
We address our attention first to the defense of absence of causal relationship. The discussion of the facts thereby required will facilitate an understanding of our disposition of the other issues as well.
In discussing petitioner's testimony, it must be noted that he had considerable difficulty in understanding counsel and in intelligible response. These difficulties have created problems in analysis of the proofs, which we have dealt with as best we could.
Although petitioner's original hiring in 1946 was preceded by an examination at which he was found to be in good health, it does not appear whether this included X-rays. He had been a burner for the same company before, working in other yards of the company from 1941 to 1944. He was in the armed forces for a period thereafter before resuming work with respondent at Hoboken.
Petitioner's working hours were from 4:15 P.M. to 1:15 A.M., with a half-hour rest period. The burning consisted of the application of a flame from a torch to metal. Sometimes this was done in the open air or in the machine or plate shops. 25% of his working time was spent on ships, and most of that in holds or inner bottoms. Metals burned included galvanized iron, copper and black iron. This process, especially in the holds or bottoms, produced heavy fumes emanating from the metal or the oil or paint covering it. At times the ...