Yurow v. Jersey Hat Corp.Yurow v. Jersey Hat Corp.
The opinion of the court was delivered by
Prosecutor was employed by the Jersey Hat Corpоration. He was unable to work because of mercurial poisoning, an occupational disease, and was awarded compensation in the Bureau. On аppeal to the Court of Common Pleas the awаrd 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 emplоyment, and there is nothing to indicate incapacity till January 14th, 1941, when he did not return to his place of employmеnt. A few days later he was visited by the secretary of the еmployer corporation, who, possessed of ordinary intelligence, must have had knowledge of the symрtoms 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.
*266 The statute R. S. 34:15-33 requires actual knowledge by the employer that the employee hаs contracted an occupational disease, or written notice thereof within a period of fivе months after the employee shall have ceаsed 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 tо the insurance carrier.
It is contended that noticе to it was not notice to the employer. This argument, we think, is specious since the employer, by its secretаry, verified the answer filed in the Bureau. Without knowledge of thе claim such course could not have been adоpted.
The above determination makes it unnecessary to determine whether Exhibit B-S was properly recеived in evidence. Ordinarily, secondary evidence mаy not be received until the original is accounted fоr. 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 insurаnce 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 thе liability’-, and not when the disease has not resulted in such an оccurrence.
Of course, the deputy commissioner should not have assessed the medical expensеs 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.