The opinion of the court was delivered by CASE, J.
This branch of the litigation arises from a dispute between insurers as to their respective obligations by reason of successive coverages under the Workmen's Compensation Act. The injured workman is a party and is represented, but it is conceded that he has established a condition of chrome poisoning due to his employment by Martin Dennis Co.
Calabria's employment by Martin Dennis Co. began February 18, 1942, and, except for a plant lay-off of four months — July to November, 1946 — continued until the hearing of his claim by the Workmen's Compensation Bureau in January, 1948. He suffers from chrome poisoning due to that employment. The exposure to chrome fumes and dust continued throughout his employment. The disability consisted of an aperture in his nasal septum. He was not obliged to quit work at any time but was found to have a permanent partial disability amounting to six per centum of total and to be entitled to compensation for 33 weeks at $25 per week.
During the employment, Martin Dennis Co. was insured successively by three insurance carriers. The Liberty Mutual Insurance Company, against whom the judgment stands, having insured from an unnamed date which we are left to assume was prior to the employment, ended its coverage on November 28, 1946; the Hartford Accident and Indemnity Company carried the risk from November 29, 1946, to January
The Workmen's Compensation Bureau found, as indicated above, a permanent partial disability chargeable against Liberty Mutual; and, on successive appeals, the judgment was affirmed by the Hudson County Court and by the Appellate Division.
Liberty Mutual presents on this appeal that the liability of the employer to pay compensation did not occur during Liberty Mutual's coverage (meaning that the liability did not arise until after such coverage was terminated), that a time certain must be fixed for the employee's disability and the employer's liability and that the courts below failed properly to construe and apply the statute and to make consistent findings of fact in accordance with the weight of the evidence.
Calabria made no claim for temporary disability. He could not because there had been no absence from work. After the disability arose he continued to work as theretofore and under like conditions of exposure to chrome poisoning. Therefore, since he had continued his employment with the same employer and had not ceased to be subject to exposure to the occupational disease, the notice, R.S. 34:15-33, and the claim, R.S. 34:15-34, were both within time. Herod
Notwithstanding some proof, not controlling, that there had been a slight increase in the size of the perforation between the original examination and the hearing, the Bureau found as a fact that the claimant's disability, the perforation of the septum, occurred before November 28, 1946, that it became static while the Liberty Mutual was the carrier and that there had been little or no change in the disability down to the date of the hearing in January of 1948. That determination of fact met with like expressions in the courts on appeal. The County Court said:
"That this aggravated state (viz., the condition at the time of the hearing) had been stationary for a period beginning well within the Liberty Mutual coverage is shown by petitioner's testimony that `during the last two years it has remained about the same.' If there had developed after the Liberty Mutual's expiration date a further stage in the progress of petitioner's ailment of a gravity sufficient to add a new cumulative phase to the grounds for claim, the proofs do not show it. Stated another way, the claim petition was filed June 3, 1947; the case was heard on January 8 and 29, 1948; and there is nothing in claimant's condition as of either of these dates which is not shown to have been present on and prior to November 29, 1946."
The Appellate Division said:
"The Bureau and the County Court found that the disability due to chrome poisoning occurred during January, 1946, in the period of appellant's coverage. There is ample evidence in the testimony to support this conclusion, and we shall not disturb it."
The fact-finding thus made by three tribunals is entrenched in the proofs, and we accept it; and having accepted it as a factual basis we find no reason for spreading the carrier liability beyond the Liberty Mutual or for seeking a ratio decidendi that will cause a pro-rating of the liability.
Recognition of a perforation of the nasal septum as a permanent disability in that it is a loss of physical function and detracts from the former efficiency of the body or its members in the ordinary pursuits of life, even when unaccompanied by present incapacity for work, was given by the former Supreme Court in Sutkowski v. Mutual Chemical Company of America, 115 N.J.L. 53 (1935). Disability arises when incapacity occurs, Textileather Corporation v. Great American Indemnity Company, 108 N.J.L. 121 (E. & A. 1931), but incapacity in the strict fullness of that word may not occur and need not occur to create partial permanent disability arising from occupational poisoning, Koval v. Natural Products Refining Co., 25 N.J. Misc. 489 (Sup. Ct. 1947). The court of last resort has not heretofore spoken directly on the subject of this phase of partial permanent disability arising from occupational disease without a degree of temporary disability. In Belanowitz v. Travelers Insurance Company, 125 N.J.L. 301 (1940), the former Court of Errors and Appeals, deciding the appeal on other grounds, declined to pass on the question, although the Supreme Court (123 N.J.L. 574, — 1940) had commented briefly thereon. In the almost contemporaneous case of Natural Products Refining Co. v. Hudson County Pleas, the Court of Errors and Appeals, 125 N.J.L. 309, 313 (1940), expressly refused
We conclude that the liability of the Martin Dennis Co. as employer to pay the compensation did occur during the Liberty Mutual's coverage although it was not determined until later, that the time of the petitioner's disability and the employer's liability have been fixed within the definition of the statute, and that the factual findings below are sufficiently clear and are not contrary to the weight of the evidence.
The judgment below will be affirmed.
For affirmance — Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHANT, WACHENFELD, BURLING and ACKERSON — 7.
For reversal — None.