Blaziak v. Eastwood-nealley Corp...

• Decision Date: 24 February 1948
• Citation: 57 A.2d 558
• Parties: BLAZIAK v. EASTWOOD-NEALLEY CORPORATION.
• Court: New Jersey Court of Common Pleas

57 A.2d 558

BLAZIAK

v.EASTWOOD-NEALLEY CORPORATION.

Court of Common Pleas of New Jersey, Essex County.

Feb. 24, 1948.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Nickolai Blaziak, claimant, opposed by Eastwood-Nealley Corporation, employer. From award of Workmen's Compensation Bureau reducing to 25 per cent of total permanent disability a previous award to claimant for 50 per cent of total disability on ground that disability had diminished subsequent to making of original award, the claimant appeals.

Award modified, fixing amount at 35 per cent of total permanent disability.

Joseph A. Fuerstman, of Newark, for petitioner-appellant.

John W. Taylor, of Newark, for respondent-appellee.

HARTSHORNE, Judge.

This appeal lies from an award entered in the Bureau, reducing to 25% of total permanent disability, a previous award to petitioner, Blaziak, of 50% of total permanent disability, ‘on the ground that the disability has diminished,’ R.S. 34:15-27, N.J.S.A., subsequent to the making of the original award.

Counsel for Blaziak questions the legal validity of the present proceedings in certain aspects. Whether the proceedings to ascertain such subsequent change in disability-unknown to the common law, and of purely statutory origin-should be on formal petition, as in Drake v. C. V. Hill Co., Err. & App., 17 N.J.L. 290, 187 A. 637, or on rule to show cause as here, would seem, in the absence of statutory specification, not to be jurisdictional, but merely procedural.

Similarly, the question of whether the application to diminish disability should be heard by the Commissioner who made the original award, or by another, would not seem jurisdictional either. On the other hand, and without any personal reflection whatever, there would seem to be sound reason why the Commissioner who heard the evidence, and entered the determination which fixed the basic disability, should also hear the subsequent evidence, and make the subsequent determination, as to whether such basic disability had been unexpectedly changed by lapse of time. The matter is not merely one of individual judicial comity. More important than that is the fact that the mind which made the original determination, and put its mere results in writing, has, in evaluating the testimony at the second hearing, the benefit of much which a new judicial mind lacks. The former, and not the latter, has seen and heard all the witnesses, the petitioner included, as they physically appeared and testified during the course of the first hearing. He is therefore in an unequaled position to pass on the credibility of their testimony, as to the claimed subsequent change in disability, as they-and most of them the same witnesses-testify at the second hearing. This is regardless of the waste of time and effort involved in seeking to acquaint a new mind with the full factual background, with which the Commissioner previously sitting is already fully acquainted. For analogous reasons other courts habitually adopt the same practice. For instance, the Court of Chancery requires an application for a modification of a stay to be made to the same Vice Chancellor who entered the original stay, and our courts of criminal jurisdiction regularly refer the sentence of a newly convicted defendant to the same judge who previously sentenced him for an earlier offense in the light of his character disabilities at that time. Though the procedure adopted in this case is not fatally defective, it is adverted to because of its importance to the wise administration of justice.

We turn to the facts. The original award was entered January 17, 1946 as the result of an accident occurring November 17, 1944, which was then determined to have resulted in the following specific injuries: to the left hand a disability of 65%, to the left shoulder 5%, and for a psychoneurosis 15%, the above aggregating a total permanent functional disability of 50%, as stated. These disabilities, as so determined, are the definite adjudicated base, from which is to be calculated the subsequent disability, on an application such as the present, either for increase or diminishment. Drake v. C. V. Hill Co., supra; Tucker v. Beltramo, 117 N.J.L. 72, 186 A. 821; 118 N.J.L. 301, 192 A. 62; Watts v. Newark, 25 N.J.Misc. 402, 54 A.2d 622. In addition to the present lengthy record on this second hearing of some 500 pages, we have the rather unusual exhibit of a series of motion pictures, taken of the petitioner, Blaziak, on three occasions, when he was clearly not aware of the purpose of their taking. Since ‘actions speak louder than words,’ both in law and in fact, the propriety and, if properly taken and projected, the helpfulness of these motion pictures, as evidence of the condition of the person or scene they portray, is undeniable. They permit the judge, as it were, to become a ‘jury of view,’ and of not the lifeless scene of the occasion in question, as is usually the case with such a jury, but of a portion of that very occasion itself-the disability of the person in question. The normal mode of taking such pictures-6 frames a second-and of projection at an equal speed, was duly proved. Indeed, the projection before this Court was by an expert projectionist suggested by the Court itself. Thus these moving pictures, of the petitioner himself, in action subsequent to the time of the original award, are of...