Balash v. Harper
| Decision Date | 09 January 1950 |
| Docket Number | No. A--45,A--45 |
| Citation | 70 A.2d 747,3 N.J. 437 |
| Parties | BALASH v. HARPER. |
| Court | New Jersey Supreme Court |
Isadore Rabinowitz, Paterson, argued the cause for the petitioner.
Grace J. Ford, Deputy Assistant Attorney General, argued the cause for the appellant; Theodore D. Parsons, Attorney General, on the brief.
The opinion of the court was delivered by
This is an appeal from a final judgment of the Passaic County Court in favor of the petitioner-respondent, entered on June 8, 1949, which reversed and set aside an order signed by the Commissioner of Labor dated March 29, 1949, dismissing the application of the petitioner-respondent for benefits from the 'One Per Cent Fund', R.S.1937, Title 34:15--95, N.J.S.A. The appeal was taken to the Appellate Division of the Superior Court and, while pending there, was certified here on our own motion.
In 1940 the respondent suffered a compensable right strangulated inguinal hernia while employed by the Passaic Gera Mills, which condition was surgically corrected. In February, 1942, the respondent suffered a non-compensable left inguinal hernia which was not operated on and for which he wore a truss. On August 31, 1942, the respondent, while still employed by Passaic Gera Mills, sustained a coronary occlusion and subsequently was awarded 40% Of total permanent disability in the Workmen's Compensation Bureau. Upon the termination of his compensation payments the respondent filed an application for benefits under the 'One Per Cent Fund' which was denied and his petition was dismissed.
The respondent contends that he became and was totally and permanently disabled on August 31, 1942 following the compensable heart injury and that the total permanent disability was and is the result of the combination of the heart injury and pre-existing condition so as to entitle him to benefits under the act.
It is admitted that the respondent sustained total disability after having been previously permanently and partially disabled by a compensable accident and that such a condition existed at the time of his application for benefits.
The testimony in the case indicates that prior to the heart attack in August, 1942, the respondent was afflicted with an arterio-sclerosis, though this would not, standing alone, interfere with his being employed as a working unit and carrying on his duties. However, there is testimony that the left inguinal hernia and the heart condition must be considered as overlapping and that the combination of the two resulted in the total disability. This was so because the added strain from the inoperable hernia would throw an additional strain on anything the man attempted to do and this added strain and undue burden imposed upon the other factors, namely the arterio-sclerosis and the after effects of the coronary occlusion, would be one he could not physically cope with, and the hernia plus the heart condition were the sole two factors which caused the total disability. The testimony is that the heart condition and the arterial disease added considerably to the risk of the operation and in the considered judgment of the treating physician would not warrant his operating, and in his opinion an operation for the left inguinal hernia was not feasible in 1942 nor is it now despite the fact there has been no change in the general arterial condition.
The appellant contends that the respondent does not come within the statutory provisions.
R.S. 34:15--95, N.J.S.A., provides Inter alia: 'The sums collected under section 34:15--94 of this Title shall constitute a fund out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of paragraph (b) of section 34:15--12 of this Title shall be made to persons Totally disabled, as a result of experiencing a Subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had Previously been permanently and partially disabled from Some other cause; * * *.'
It further provides:
'provided further, however, that no person shall be eligible to receive payments from such fund:
(a) If the disability resulting from the injury caused by his last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.
(b) If permanent total disability results from the aggravation, activation or acceleration, by the last compensable injury, of a pre-existing noncompensable disease or condition.
(c) If the disease or condition existing prior to the last compensable accident is not...
To continue reading
Request your trial
-
Gulick v. H.M. Enoch, Inc.
...amendments, the Fund was only liable when two unrelated disabilities combined to cause total disability. See, e.g., Balash v. Harper, 3 N.J. 437, 442, 70 A.2d 747 (1950); Wexler v. Lambrecht Foods, 64 N.J.Super. 489, 504-05, 166 A.2d 576 (App.Div.1960), certif. denied, 34 N.J. 326, 168 A.2d......
-
Paul v. Baltimore Upholstering Co.
...the statute before us, we could entertain no doubt that the comprehensive construction of the Fund act in cases like Balash v. Harper, 3 N.J. 437, 442, 70 A.2d 747 (1950) and Wexler v. Lambrecht Foods, 64 N.J.Super. 489, 166 A.2d 576 (App.Div.1960), certif. den. 34 N.J. 326, 168 A.2d 691 (1......
-
Lewicki v. New Jersey Art Foundry
...accidental or occupational condition have in conjunction causally contributed to the total permanent disability. Balash v. Harper, 3 N.J. 437, 442, 70 A.2d 747 (1950). Prior to 1980, Fund liability was denied when the prior partial disability was aggravated by the later incident. Katz I, su......
-
Bello v. Commissioner of Dept. of Labor and Industry
...to the injured employee. Richardson v. Essex National Trunk, &c., Co., Inc., 119 N.J.L. 47, 194 A. 622 (E. & A.1937); Balash v. Harper, 3 N.J. 437, 70 A.2d 747 (1950). As was said in the latter 'The intent of the statute is to insure the employee Full compensation where a compensable disabi......