Breheny v. Essex County

• Decision Date: 11 April 1945
• Docket Number: No. 232.,232.
• Citation: 132 N.J.L. 584,41 A.2d 890
• Parties: BREHENY v. ESSEX COUNTY et al.
• Court: New Jersey Supreme Court

132 N.J.L. 584

41 A.2d 890

BREHENY

v.ESSEX COUNTY et al.

No. 232.

Supreme Court of New Jersey.

April 11, 1945.

Proceeding under the Workmen's Compensation Act by Patrick Breheny, claimant, opposed by the County of Essex, employer, and the Bankers Indemnity Insurance Company, insurance carrier. Judgment increasing an award of compensation for 40 per cent. partial permanent incapacity to 100 per cent. total permanent incapacity, 33 A.2d 294, and respondents bring certiorari.

Writ dismissed.

January Term 1945, before BROGAN, C. J., and DONGES and PERSKIE, JJ.

Maurice C. Brigadier, of Jersey City, for prosecutors.

David Roskein, of Newark (John A. Laird, of Hoboken, of counsel), for respondent.

PERSKIE, Justice.

The basic question for decision in this workman's compensation case is whether the employee carried the burden of establishing his asserted claim for compensation because of subsequently increased incapacity. R.S. 34:15-27, N.J.S.A.

In the Bureau and in the Essex County Court of Common Pleas the question was resolved in the affirmative; and the judgment, based on the original award in the Bureau of 40%, was increased in the Bureau and in the Pleas to 100% of permanent total incapacity. Our independent appraisal of the proofs, and the law applicable thereto, lead us to the conclusion that the increase was right.

The applicable law is clear. The judgment of March 15, 1940, determining that petitioner had suffered 40% partial permanent incapacity, is res adjudicata of the nature and extent of the incapacity at the time of such award. That award must be compared with the condition and ability of the employee at the time the increase was granted in the Bureau on July 14, 1943. Breheny v. County of Essex, 21 N.J.Misc. 253, 33 A.2d 294. In the words of Mr. Justice Case for the Court of Errors and Appeals in Cirillo v. United Engineers & Constructors, Inc., 121 N.J.L. 511, 514, 3 A.2d 596, 598, we are concerned with two conditions, namely, ‘one which was and one which is.’ Comparison is the yard stick of admeasurement. See, Rotino v. P. J. Scanlon, Inc., 125 N.J.L. 227, 228, 15 A.2d 336, 752, affirmed 126 N.J.L. 419, 19 A.2d 777.

What was the nature and extent, or condition and ability, of petitioner at the time (March 15, 1940) of the original award of 40% of total permanent disability?

The determination of facts and rule for judgment disclose that respondent, Patrick Breheny, petitioner below, then about 50 years of age, was employed by the County of Essex as a painter for about six years. While so employed he suffered a coronary thrombosis as the result of the strain or effort which he exerted on May 18, 1938, when with the aid of fellow employees he was engaged in the act of raising a heavy plank from the floor to the scaffold upon which he was standing, and in hoisting the scaffold. He was confined to bed for about ‘six weeks,’ and thereafter ‘remained at complete rest until November 1, 1938, when he returned to his employment.’ Thereafter he did not work on ‘numerous occasions' because of his heart condition. When he did work, he ‘confined himself to the lighter duties of his trade, such as mixing paint and doing ground work.’ Notwithstanding the lighter nature of his work, he continued generally to suffer ‘body weakness,’ ‘occasional pain in the region of his heart,’ ‘shortness of breath, especially on exertion or on walking up and down stairs,’ he tired ‘easily,’ and felt more or less exhausted ‘after the end of his day's work.’

The deputy commissioner concluded that the effort exerted by petitioner on March 18, 1938, ‘superimposed upon his underlying arteriosclerotic cardiac vascular system, produced a spasm in the coronary artery which resulted in a coronary thrombosis from which he is suffering,’ that there was causal relation between the petitioner's heart condition and his effort or exertion on May 18, 1938, hence he suffered an accident which arose out of and in the course of his employment. Accordingly, the deputy commissioner made the stated award of 40% of permanent total disability. From the judgment based upon this award there was no appeal.

What then was the nature and extent of petitioner's incapacity, or condition and ability as a result thereof, at the time when the same deputy commissioner, who made the original award of 40%, increased same to 100% of permanent total disability?

To petitioner's claim petition for increased compensation the County of Essex made the following answers: It specifically answered the first five questions; they are not in issue. It answered the remaining question as follows: ‘See 36 and 37’; its answers to those numbered questions are substantially alike. The answers state that respondent's failure to answer the other questions is no waiver of its defenses and is no admission of petitioner's claims and the answers specifically deny that ‘petitioner's disability has increased since the adjudication’ of March 15, 1940.

The record discloses that on March 5, 1943, petitioner was examined de bene esse before a Supreme Court Examiner, in the presence of counsel for the respective parties, in the bed room of the second floor of petitioner's home. He was then 54 or 55 years of age. He testified that because his condition had ‘gotten worse,’ he was obliged to and did stop all work in June of 1940. Thereafter and until about the middle of December of 1942, he was able to ‘get around the house and go out in the back yard;’ but since that time he has been confined to his bed room; and that he no longer could lie in his bed because when he did so he would suffer pain, hence he slept in an arm chair. It shall serve no purpose further to detail petitioner's condition. For notwithstanding what appears to have been the narrow issue on the pleadings, namely, the increase vel non of petitioner's incapacity, counsel for respondents below conceded that petitioner's incapacity was 100%, and that respondents were not in any position ‘to dispute anything he (petitioner) said so far as his incapacity for working is concerned.’

Hence the deputy commissioner posed the issue thus: ‘It is a question whether or not the increase of his (petitio...