Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
From some time prior to June 1955 until December 1960 petitioner was employed by Canfield Oil Company (Canfield). From December 1960 until January 1962 he was unemployed. Since then he has been employed as a bartender in Basil's Tavern, owned by a relative. New Jersey Manufacturers Insurance Company (NJM) was Canfield's workmen's compensation insurance carrier until November 30, 1957; thereafter, Canfield became a self-insurer.
On September 20, 1957, in a proceeding instituted by petitioner against Canfield, Deputy Director Kerner of the Division of Workmen's Compensation found:
"that in the month of June 1955 petitioner had suffered an injury to the palm of the right hand which apparently consisted of some slight minimal penetrating wound inflicted by a screw driver, and subsquent thereto the petitioner suffered an occupational condition of both hands by the application of pressure causing Dupuytren's Contracture in the right hand and aggravating a previous pre-existing Dupuytren's Contracture in the left hand, which was the subject of operative intervention in October of 1953.
The physical application of pressure which was involved took place in the opening and closing of valves and applying covers and caps to cans and other containers.
There is * * * attributable to both the accident and the occupational pressure that has been described, a permanent disability of fifteen per cent of total. * * *
This award of permanent disability in terms of total permanent disability is predicated upon a disability of approximately ten per cent to twelve and a half per cent partial permanent disability in the right hand, and approximately twenty per cent partial permanent disability in the left hand, due to the accident involving the screw driver in the right hand, and due to the occupational conditions following the screw driver injury and his occupational condition I have described."
On September 19, 1959, petitioner filed an application for review or modification of the original award against Canfield, naming NJM as the latter's insurance carrier and alleging an increase in the deformity of each hand. On learning that NJM no longer insured Canfield, petitioner on February 19, 1960 filed an original claim petition for compensation against Canfield, naming it as self-insurer. The former petition merely described the worsening of the condition since the original award; the latter, in addition, alleged:
"I have continued doing the same type of work that I was doing at and prior to the time of the original award. Because I continued to constantly use my hands, the condition in my hands has worsened."
Proceedings on the two petitions were consolidated for trial before Judge Kelly of the Division of Workmen's Compensation on April 21, 1961. He found that petitioner's disability had increased by 15%; that "rather than increased disability due to the original exposure, there is an increase in disability due to additional exposure," of which 5% was due to exposure until November 30, 1957 when NJM ceased to be Canfield's insurance carrier, and that the remaining 10% was brought about by the additional occupational use and exposure from November 30, 1957 up to December 1960 when employment ceased. No appeal was taken from this determination. NJM paid the additional 5%; Canfield, as self-insurer, paid the additional 10%.
It may be noted that in neither the original 1957 award nor in the 1961 proceedings did the Division determine that petitioner's condition was fixed or static. Cf. Ort v. Taylor-Wharton
Co., Division of Harsco Corporation, 47 N.J. 198 (1966).
On March 22 and May 22, 1962, respectively, petitioner filed separate petitions for review or modification against Canfield, the former naming NJM as the insurer, the latter Canfield as self-insurer. Each petition alleged, "The condition in both of my hands, known as Dupuytren's Contracture has become progressively worse." The two proceedings were consolidated and tried before Judge Kelly in the Division on March 31 and December 15, 1964.
In an opinion rendered January 11, 1965 Judge Kelly found that the petitioner had "sustained an increased permanent disability of 12 1/2% of permanent partial disability as a result of his occupational injury"; that "the nature of petitioner's present employment as a bartender, hired by a relative, under favored conditions, is not a factor of causation, aggravation or contribution to petitioner's Dupuytren's Contracture of both hands"; and that the increase which had occurred "since the last period of exposure alleged" (December 1960) is chargeable solely to Canfield as self-insurer. Citing Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308 (1964), Judge Kelly ruled that "an apportionment of causal relationship could not be accurately ascribed" as between the employment during the period when NJM was the insurer and the later employment during the period when Canfield was self-insurer, so that full responsibility for the increase was to be imposed on Canfield in its uninsured status.
Judgment was entered awarding petitioner increased disability of 12 1/2% to be paid by Canfield as self-insurer; Canfield was ordered to furnish surgery if petitioner requested it; the petition directed to NJM was dismissed. Canfield appealed to the County Court.
After reviewing the record, the County Court judge also found a 12 1/2% increase in disability. But contrary to the finding made by the Division, he found and determined "that the duties performed by the petitioner in his employment
[as bartender] at Basil's did substantially contribute to his increased disability of 12 1/2% of partial total." On the basis of that finding, he construed Bond, supra, as requiring Basil's Tavern to bear the responsibility for the increase in disability, with Canfield being exonerated. However, Basil's Tavern was not a party to the litigation; no award could be made against it. Judgment was entered in the County Court dismissing both of petitioner's applications for review. Petitioner appeals.
The question here presented is one aspect of the problems arising in occupational disease cases when the disabled employee, or the employee suffering increased disability, has had several employers, or ...