Opinion
Argued January 19, 1944 —
Decided March 23, 1944.
1. The proofs examined indicate that the employer had timely notice that the employee suffered from an occupational disease.
2. An insurance carrier insuring an employee when the employee ceases to work, because of an occupational disease, is liable even though the employee has been treated for the disease before he stopped work.
On certiorari.
Before BROGAN, CHIEF JUSTICE, and Justices BODINE and COLIE.
For the prosecutor, David Roskein and John A. Laird.
For the respondent, John W. Taylor.
Prosecutor was employed by the Jersey Hat Corporation. He was unable to work because of mercurial poisoning, an occupational disease, and was awarded compensation in the Bureau. On appeal to the Court of Common Pleas the award was reversed. Certiorari was allowed.
The proofs show that the disease was of long standing and the employee had been treated for and informed of his condition long before he ceased to work. He continued however in his employment, and there is nothing to indicate incapacity till January 14th, 1941, when he did not return to his place of employment. A few days later he was visited by the secretary of the employer corporation, who, possessed of ordinary intelligence, must have had knowledge of the symptoms of mercury poisoning — a disease common in the hat industry.
Prosecutor's claim for compensation, because of mercurial poisoning while in defendant's employ, was filed with the Bureau on May 14th, 1941.
The statute R.S. 34:15-33 requires actual knowledge by the employer that the employee has contracted an occupational disease, or written notice thereof within a period of five months after the employee shall have ceased to be exposed to the cause of the disease.
Even if the proofs do not satisfy the requirements of knowledge by the employer of the nature of the disease ( Gamon Meter Co. v. Sims, 114 N.J.L. 590 ), there was timely written notice of the claim to the insurance carrier.
It is contended that notice to it was not notice to the employer. This argument, we think, is specious since the employer, by its secretary, verified the answer filed in the Bureau. Without knowledge of the claim such course could not have been adopted.
The above determination makes it unnecessary to determine whether Exhibit R-3 was properly received in evidence. Ordinarily, secondary evidence may not be received until the original is accounted for. Linden Silk Co. v. Paterson Silk Throwing Co., Inc., 119 N.J.L. 482 .
When prosecutor ceased work the Liberty Mutual Insurance Company insured the Jersey Hat Corporation. The risk was written but a few days before he ceased work and was incapacitated from further activity. The insurance company insuring the risk when the incapacity occurred is liable. Textileather Corp. v. Great American Insurance, c., 108 N.J.L. 121 . As pointed out in that case, disease is progressive when the disability occurs determines the liability, and not when the disease has not resulted in such an occurrence.
Of course, the deputy commissioner should not have assessed the medical expenses incurred prior to January 14th, 1941, because there was no evidence that the employer was ever requested to furnish the services or had knowledge thereof.
So modified, the determination of the Bureau is affirmed and the judgment of the Court of Common Pleas is reversed.