For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None.
In this workers' compensation proceeding, petitioner, Frank Ansede, a retired employee of National Gypsum Co. (National) had obtained an award for disability due to an occupational disease. National's insurance carrier, Hartford Insurance Group (Hartford), unsuccessfully sought an adjudication of its claim that the responsibility to pay the award should be shared between it and National, which immediately preceding Hartford's coverage had been self-insured.
Frank Ansede had been employed by National and its predecessor, Asbestos, Limited, from 1938 until his retirement on May 31, 1971. He was a maintenance man in the company plant where he was continuously exposed throughout the years to the dust created in the process of manufacturing asbestos shingles. By about 1964, he began to experience pulmonary symptoms including shortness of breath, a dry cough accompanied by a white sputum and fatigue.
National, a self-insurer between 1938 and January 1971, had arranged for x-rays to be taken of Ansede's chest in
1964, 1966 and 1970. The 1964 x-rays disclosed nodular lesions in both lung fields, fibrotic in nature of the type seen in pneumoconiosis. Each of the succeeding x-rays showed the nodular densities and increased bronchovascular markings. Dr. Ronald D. Goodman, petitioner's medical expert, testified that the pneumoconiosis manifested itself no later than 1967.
In January 1971, Hartford assumed National's workers' compensation coverage. Ansede filed a claim petition on January 25, 1971, in which he sought compensation for the disability due to his exposure to asbestos dust during his more than 32 years of employment. Hartford filed an answer and the case was pretried on January 24, 1972.
The first hearing was held on May 21, 1973. At that hearing Ansede explained that his symptoms (coughing with sputum, shortness of breath, tiredness) had existed over a long period of time and that at the instance of National, his chest had been x-rayed every two years beginning in 1964. He was advised by National's personnel manager to visit a private physician to whom the x-rays would be released. The petitioner heeded this advice and came under the care of Dr. Cox. Prompted by the disclosures in Ansede's testimony, on May 23, 1973, two days after the initial hearing, Hartford filed a motion to join National in its capacity as self-insured for any disability manifesting itself prior to January 1971.
On December 20, 1973, Ansede filed with the Division of Workers' Compensation an amended petition in which it named National as a self-insured prior to January 1971 and Hartford as the carrier subsequent to that time. The workers' compensation file does not disclose whether it was served. In any event, National never filed an answer and in its brief before us asserts that it was never served with the amended petition.
On February 24, 1975, the Judge of Workers' Compensation entered an award in favor of the petitioner, finding permanent disability of 22-1/2% of total due to pneumoconiosis and pulmonary fibrosis. At that time the respondent's attorney
referred the judge to the pending motion to join National and to petitioner's amended claim petition. He requested that the issue of apportionment be heard on another date.
The judge denied the motion and the request. He asserted that the respondent had failed to move the motion and that any question concerning the coverage should have been raised at the time the answer was filed. Insofar as the amended petition was concerned, he pointed out that there was ...