For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Francis, J.
This is a workmen's compensation occupational disease case. The petitioner Enos Ort was employed for many years in respondent's foundry where in the course of his work he was extensively exposed to dust. On November 21, 1956 he filed a petition for compensation claiming that the dust inhalation had caused pneumoconiosis and emphysema which produced substantial permanent disability. After hearing at which the compensability of his claim was not contested the judge of compensation found that the incapacity was fixed, measurable and permanent and amounted to 30% of total permanent disability. Judgment for that percentage was awarded. It is not clear from the record whether the proceeding was a contested one or a species of settlement commonly referred to as a "streamline judgment." At the time of filing of the petition for compensation the New Jersey Manufacturers Casualty Insurance Company was the employer's insurer, and accordingly payment of the judgment was assumed by it.
Thereafter Ort returned to respondent's employ where he continued to be exposed to the dust. At this time the workmen's compensation risk had been assumed by the Liberty Mutual Insurance Company, it having replaced the New Jersey Manufacturers as the carrier. On February 27, 1961 Ort filed two new petitions for compensation alleging that as of March 2, 1959 (the date of cessation of work) his exposure to dust had resulted in total permanent disability. In one petition he sought a modification of the earlier judgment awarding him compensation for 30% of total permanent disability, alleging that the disease which produced that disability had progressed so as to increase the incapacity to total. Therefore,
he claimed that the earlier judgment should be altered so as to provide compensation for the total disability then existing. See N.J.S.A. 34:15-27. Since this alleged cause of action related back to the initial claim the original carrier, New Jersey Manufacturers, defended the employer in that case, as concededly it was obliged to do.
The thesis of the second petition for compensation was that the increase from 30% to total permanent disability existing as of February 27, 1961 resulted from an additional exposure to the employment dust and that such exposure superimposed an additional and independent disability on the already existing and fixed 30%, that is, a further 70% which in combination produced total and permanent incapacity. This alleged cause of action having come into existence when the Liberty Mutual was on the risk, it was required to assume the defense and the payment of any judgment awarded thereon.
The two actions were consolidated for trial. After hearing the medical evidence all of which agreed the petitioner was totally and permanently disabled, the judge of compensation dismissed the petition seeking to charge the increase in disability to a natural progression of the disease, and therefore the responsibility of the New Jersey Manufacturers Casualty Insurance Company. He held that at the time of the award of 30% of total permanent disability, the incapacity was fixed and certain, not of itself progressive and would not have progressed were it not for the additional hazard, in the sense of new or independent exposure to dust. This finding signified that Ort had not sustained the burden of proving by a preponderance of the evidence that the additional 70% disability was causally related to the original exposure. Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 149 (1963).
On the second petition the judge found that Ort's disability was total and permanent and that the additional 70% was chargeable to the Liberty Mutual since it was on the risk during the later exposure and particularly at the time when Ort was forced to cease working. In fine, so far as the additional 70% is concerned the judge treated it just as though
the exposure which produced it had come from a different employment. He found in effect that at the time of the 30% award the disability was fixed and static; if Ort had ceased the exposure to dust there would have been no change in his condition. Then he seems to have found that the continued exposure thereafter constituted a new and independent incident which, of and by itself, produced a disability to the extent of 70% of total. He treated the later exposure as if it were a second and distinct "accident," causing its own separate measure of disability, i.e. 70% of total.
As a consequence of his findings the judge declared Ort to be entitled to compensation on the basis of 100% disability, 30% of which constituted the full measure of the New Jersey Manufacturers liability, and the remaining 70%, plus any additional payments to be made after payment of the 450 weeks compensation (because of failure of rehabilitation) representing the responsibility of Liberty. See N.J.S.A. 34:15-12(b).
Liberty appealed the award to the County Court and thereafter to the Appellate Division, both of which affirmed the judgment in unreported opinions. A number of grounds of appeal were urged, particularly that the findings and judgment of the judge of compensation required a holding that the One Per Cent Fund, N.J.S.A. 34:15-95, is responsible for any payments after Ort has received 450 weeks of compensation. The Commissioner of Labor and Industry, who administers the Fund, was not a party to the proceedings in any tribunal below. We granted certification and requested the Commissioner to present his views on the issues involved. 47 N.J. 80 (1965).
In the briefs and oral argument before us the Commissioner and the petitioner took the position the One Per Cent Fund is not involved, while Liberty urged the contrary view. After a consideration of the case we are of the view that the matter should be remanded so that the Commissioner of Labor and Industry can be joined as a ...