Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
[78 NJSuper Page 506] Petitioner Bond received an award of temporary disability and 20% partial permanent disability in the Workmen's Compensation Division, to be paid by the Insurance Company of North America (North America), and not by New Jersey Manufacturers Casualty Insurance Co. (Manufacturers), a subsequent carrier on the risk. The County Court affirmed and North America now appeals to this court. Petitioner takes a limited appeal to preserve its rights in the event we determine that Manufacturers is liable jointly, severally or in the alternative with North America. Neither insurer challenges the award. The sole question to
be determined is which of the two carriers is to pay. Determination of this question requires a close review of the record.
Rose Ribbon & Carbon Mfg. Co. manufactures carbon paper and teletype and typewriter ribbons. Petitioner was in its employ as an ink maker from July 1950 to May 1951, and from September 1952 until April 18, 1958. His work consisted of mixing colors by putting powdered ink into a mixing machine. He would bring the powdered ink, composed of crystalline violet, brilliant green and fuchsine red dyes, from the plant warehouse in barrels and scoop it into the mixer. He would empty five or six barrels a day. The dust from the scooping and mixing would get into his mouth, nose and ears, making him cough and sneeze. The powder would even permeate the mask he wore, as well as his clothes. Part of his work consisted of carrying two tubs of hot ink each day to the workbench of a fellow employee, Thelma Glasico, and the hot mix would give off fumes and an odor. (The compensation claim of Mrs. Glasico is the subject of a companion appeal, A-918-61, decided this day.)
Petitioner went to see Dr. Samuel A. Shapiro in mid-January 1956, complaining of a cough and chest pain. He had a temperature, and Dr. Shapiro gave him a note for his employer stating that petitioner "should not work where there is dust or fumes which he inhales directly." Petitioner continued working until June 10, 1957, when he was confined to bed for a week. Dr. Shapiro saw him and diagnosed his condition as virus infection, respiratory type. Petitioner returned to the plant on June 17.
On December 6, 1957 a mobile unit of the Hudson County Tuberculosis and Health League took a routine 70 mm. X-ray of petitioner. Dr. Leo Horowitz read the X-ray and reported:
"Suspect Tuberculosis -- Questionable density left 1st anterior interspace and left 3rd anterior rib. Further study with 14 x 17 [14" x 17"] film"
A copy was sent to Dr. Shapiro, and the League also wrote to petitioner directing that he consult his doctor. Petitioner testified he did so later in December and was advised by Dr. Shapiro to report to the Board of Health and have the X-ray taken over again.
Dr. Shapiro testified for petitioner. He had to rely on memory because he had lost his records as well as the December 6 X-ray film. He said he had not felt it necessary to send his patient for X-rays when he saw him in January 1956 or in June 1957. He vaguely remembered seeing petitioner in December 1957 after receipt of the mobile unit's film, and sending his patient to get a sputum examination at the city dispensary. Asked if he was aware of the presence of tuberculosis when petitioner saw him on that occasion, he replied, "I wouldn't make the diagnosis of tuberculosis without a positive sputum and a positive X-ray."
Petitioner did not go to the city clinic as advised, but continued to work until the League alerted the Newark Department of Health concerning his condition. He was X-rayed at the clinic on April 17, 1958, at which time he was found to have "active pulmonary tuberculosis with an infiltrate in the left upper lung field with suspicious cavitation. Sputum examination is positive." He was placed on chemotherapy until his admission to the Verona Sanatorium at the end of May 1958 for observation of pulmonary pathology. X-rays taken two months later revealed a continuing tubercular condition. Petitioner was discharged from Verona August 4, 1958, the final diagnosis being "Tuberculosis, pulmonary, minimal, bilateral." Two days later he was admitted to the Veterans Administration Hospital where he remained until discharged from treatment on January 28, 1959 with a diagnosis of "pulmonary tuberculosis, minimal, inactive."
By stipulation of counsel the testimony given in Glasico v. Rose Ribbon & Carbon Mfg. Co. -- particularly by Newton I. Sax and John P. Brady, industrial toxicologists, and by two of the company's employees, regarding physical conditions at the plant -- was made part of the record in this case. The
parties have also stipulated that North America was on the risk until March 24, 1958, at which time Manufacturers became the carrier. (The Glasico record indicates that North America had become the compensation carrier in 1955.)
Sax testified that crystalline violet, in powdered form, was very irritating to lung tissue. Petitioner was also exposed to ethylacetate, cellosolve, sodium bisulfite and potassium permanganate. Without detailing Sax' testimony, suffice to say that all four are irritating to the lungs.
Dr. Saul Lieb was petitioner's medical expert, and Dr. Albert B. Tucker appeared on behalf of Manufacturers. Dr. Lieb had examined petitioner on March 21, 1959 and October 27, 1960. On both occasions he found the tuberculosis arrested. Disability was estimated at 30% of total. In answer to the hypothetical question he testified that petitioner's tuberculosis was causally related to his employment. In his opinion petitioner's exposure to the various dyes and chemicals of his employment environment irritated the bronchial tubes and respiratory tract and "caused chemical and allergic irritation and produced the bronchitis and increased coughing, and these factors combined to be the competent producing cause of a pre-existing dormant tuberculosis and caused it to become active and spread." Another factor was his daily exposure to a fellow worker, Mrs. Glasico (the hypothetical question stated that she "was found to have tuberculosis in December of 1957"), thus affording an opportunity to contract the disease directly from her.
Dr. Lieb's testimony on cross-examination obviously played an important part in the determinations of the two lower tribunals, and we therefore examine it closely. Counsel for Manufacturers asked him to assume, among other facts, that petitioner's personal physician, Dr. Shapiro, had indicated in January 1956 that " because of pathology in his lungs " he should not work where there was any dust or fumes which he inhaled directly. There was no such proof, either in the ...