For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
We granted the petition of Rose Ribbon & Carbon Mfg. Co., by its insurance carrier, New Jersey Manufacturers Casualty Insurance Company, to appeal from the judgment of the Appellate Division. 40 N.J. 499.
We affirm generally for the reasons stated by the Appellate Division, Bond v. Rose Ribbon & Carbon Mfg. Co., 78 N.J. Super. 505 (App. Div. 1963), subject to the following:
The evidence warrants the conclusion that the activation of Bond's tubercular condition occurred at some undisclosed time prior to March 24, 1958, the date upon which New Jersey Manufacturers Casualty Insurance Company (Manufacturers) succeeded Insurance Company of North America (North America) as carrier. But it is also evident that Bond was then unaware of the existence of that disease, and that there was no visible manifestation thereof.
It is undisputed, as testified by Doctor Lieb, that:
"Anyone with active tuberculosis has a temporary disability of 100 per cent of total on the basis that they should not be working and should be under treatment."
Theoretically, then, a 100% temporary disability, antedated March 24, 1958, although unknown to Bond and not cognizable by a layman. In spite of that disability he was not physically incapacitated from performing the duties of his employment but, to the contrary, continued to function as an employee.
Where, as here, an employee is exposed to work conditions which activate or cause a progressive occupational disease, and the existence of such disease remains undisclosed and unknown over a period of time, it is impossible upon ultimate revelation of its existence by medical examination, work incapacity, or manifest loss of physical function, to pinpoint in retrospect, the triggering date of such activation or inception. It is also impossible to reconstruct the daily rate of progress of the disease from its genesis to discovery through one of the afore-mentioned means, where such employee continues to be exposed to work conditions which aggravate the existing disease in unascertainable stages. It follows that where the employment under such work conditions was under the aegis of successive employers or insurance carriers, from initial infection or activation to discovery or manifestation, it is impossible to accurately determine the inception and the rate of progress of the disease during such respective periods of employment or insurance coverage. Therefore, any apportionment of compensation liability between the successive employments or insurance coverages, must of necessity be speculative and arbitrary. To avoid the morass into which litigation would be pitched were apportionment required, and to eliminate the recognized unsatisfactory nature of any such attempted ascertainment, we conceive that the most workable rule and that most consistent with the philosophy and public policy of the Workmen's Compensation Act is to hold liable that employer or carrier during whose employment or coverage the disease was disclosed as above noted, i.e., by medical examination, work incapacity, or manifest loss of physical function. Although this test is admittedly arbitrary and may on occasion cause some apparently unfair results, over the years it should result in an equitable balancing of liability. Under the circumstances we conceive it to be the fairest and most workable thesis.
Two other matters require attention.
We became aware during oral argument that the petitioner has to date received no compensation payments. Although
this issue is not formally before us, we feel constrained to express our views of ...