On appeal from Division of Workers' Compensation.
Seidman, Antell and Lane. The opinion of the court was delivered by Seidman, P.J.A.D.
[176 NJSuper Page 331] Petitioner was employed for many years by American Cyanamid Company. During that time he was exposed to carcinogenic chemicals. He developed cancer of the bladder which, according to the medical proofs and not disputed on this appeal, was caused by the exposure. The condition worsened from February 1975, when the disease was first discovered by medical
examination, until he became totally disabled in April 1978. There is no issue, of course, of the employer's responsibility to accord petitioner his full measure of workers' compensation benefits. It does not matter whether the ultimate total disability was the normal progression of the cancer, an aggravation or acceleration of the condition resulting from petitioner's continued exposure to the carcinogenic material, or a combination of both. The employer is concededly liable for the end result. The sole issue on this appeal is the extent to which two workers' compensation carriers are obligated to pay the award of temporary and permanent disability benefits to the petitioner, made after a hearing in the Division of Workers' Compensation. Dependency benefits are not involved.
Commercial Union Assurance Companies (Commercial Union) was on the risk in February 1975 and remained so until the end of that year. American Home Insurance Company (American Home) assumed the risk on January 1, 1976, and was the carrier when petitioner became totally disabled. There is no contention that any carrier prior to Commercial Union is liable for the claim in whole or in part.
The judge of compensation found that the cancer was diagnosed on February 13, 1975. He took note of an order made by another compensation judge requiring Commercial Union to pay temporary disability benefits for stated periods up to October 26, 1977, and also certain medical bills. The order further provided for credit to be given Commercial Union in the event liability was ultimately placed on another carrier. The judge of compensation here also found that petitioner returned to work on October 26, 1977, and continued to be exposed to the chemicals until April 10, 1978, after which, for all practical purposes, petitioner never worked again. It appears that a Dr. Bloom, who examined petitioner in October 1976, evaluated his disability at 60% of partial total. His reexamination in March 1978 revealed an increase in disability to 75% of partial total. In June 1978 he found petitioner to be totally disabled.
While there was some conflict in the medical proofs with respect to whether the continued exposure aggravated or accelerated the cancer, one medical expert contending that it did not, the judge of compensation accepted as more credible the contrary view expressed by practically every other medical expert in the case.
On the crucial issue of apportionment of liability between the two carriers, the judge of compensation said:
I believe that we have a definite point in time here. We have an evaluation of petitioner's disability, which satisfies the requirements as recited in the famous case of Bond v. Rose Ribbon and Carbon Mfg. Co. , 42 N.J. 308. It's a 1964 decision.
By that case, we find that an apportionment of an occupational disease may be made when the disease was disclosed by the medical examinations of the man's working capacity or manifestation [sic] loss of physical function. In the instant case, we have a medical examination and a definite evaluation of the extent of the disability made at the time, and I am referring to Dr. Bloom. There is nothing that I see before me that would permit this Court-again following the Bond rule-to apportion any part of the disability prior to that opinion of the disability by Dr. Bloom.
Consequently, I am constrained, under the cases, including Ansede v. National Gypsum Company , 73 N.J. 444, 1977, to dismiss a claim petition, insofar as it concerns American Cyanamid Company while it was self-insured, or for the period when it was insured by the New Jersey Manufacturers Insurance Company and again during the period when the Insurance Company of North America was on the risk.
I feel that there is an apportionment here in this case between the last two carriers; namely, the American Home ...