Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Kolovsky, P.J.A.D.
American Mutual Liability Insurance Company (American) appeals from so much of a judgment entered in the Division of Workmen's Compensation as adjudged that New Jersey Manufacturers Insurance Company (N.J.M.) is not responsible for any part of the award for partial permanent disability, "75% binaural loss of hearing," made to petitioner Scheier.
Scheier had been employed by respondent Garden State Forge Co. from 1950 until May 1969. In February 1970 he filed a claim petition in the Division of Workmen's Compensation alleging that he had suffered a substantial loss of hearing by reason of his exposure to the loud noises associated with respondent's forging and foundry industry. As noted above, the Division ruled in his favor. The award has been paid and the propriety thereof is not challenged on this appeal.
The only issue on appeal involves a dispute between American, the employer's workmen's insurance carrier since April
11, 1962 and N.J.M., which had been the employer's workmen's insurance carrier prior to that date.
American contends that N.J.M., which it had interpleaded as a corespondent, should be required to pay "85% of the award, including examination, stenographic and counsel fees" because -- we quote from the stipulation of facts on the basis of which the dispute was submitted to the Division Judge:
On April 4, 1962 [one week before American's policy became effective] a hearing examination of the Petitioner, Paul Scheier, including an audiogram, was conducted by Dr. John F. Scalera of South Plainfield, New Jersey. The hearing examination established a hearing loss of 55.5% in the right ear and 108% [sic] in the left ear.
In the course of his oral opinion the Division judge stated that American had, on April 4, 1962, "caused a hearing examination of petitioner together with an audiogram to be conducted by Dr. John F. Scalera." Nothing in the record furnishes any support for that statement. The stipulation of facts gives no indication as to who had requested the examination or why the examination had taken place.
Further, at oral argument of the appeal N.J.M. did not dispute American's denial that it had requested the examination. Nor did it challenge American's assertions that it had learned of Dr. Scalera's examination and report only after petitioner had instituted these proceedings in February 1970. It had then called for and had examined the personnel file of Garden State Forge Co. relating to petitioner. Found in that file was the report, together with the audiogram, which had been sent to Garden State by its plant physician, Dr. Scalera.
There is therefore no validity to the suggestion -- based on the erroneous assumption that American had ordered the examination and had received the report in April 1962, but had not informed N.J.M. thereof -- that somehow American is now barred or estopped from seeking any contribution from N.J.M.
In refusing to impose any liability on N.J.M. the ...