Donofrio v. Haag Bros.

• Decision Date: 27 November 1950
• Docket Number: No. A--408,A--408
• Citation: 10 N.J.Super. 258,77 A.2d 42
• Parties: DONOFRIO v. HAAG BROS., Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 258

10 N.J.Super. 258

77 A.2d 42

DONOFRIO v. HAAG BROS., Inc.

No. A--408.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 13, 1950.

Decided Nov. 27, 1950.

Arthur F. Mead, Newark, argued the cause for appellant (Cox & Walburg, Newark, attorneys).

Charles Wm. Kappes, Union City, argued the cause for appellee (A. Michael Lepore, Union City, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

The employee in this workmen's compensation case is a butcher. He strained his back on February 10, 1947, while lifting an 80-pound hog.

The first of his two claim petitions for compensation was filed on an undisclosed date in 1947. The claim was settled under an agreement stipulating his permanent disability as 7 1/2% Of total. The agreement was approved by an 'award' entered October 31, 1947, in the Workmen's Compensation Bureau.

His second petition was filed February 16, 1949. His brief erroneously treats this petition as filed under R.S. 34:15--27, N.J.S.A., for modification of the 'award' of October 31, 1947, to seek an allowance for increased disability. That 'award' was in essence a mere agreement of compromise, approved by the Bureau, and is, therefore, not a 'formal award' within the intendment of R.S. 34:15--27, N.J.S.A. The second petition, as appellant employer concedes, is to be viewed as an application for an original determination of the merits of the employee's statutory claim for compensation, a determination to which the statute entitled the employee. Streng's Piece Dye Works, Inc., v. Galasso, 118 N.J.L. 257, 191 A. 874 (E.&A.1937). If the second petition were to be looked upon as brought under R.S. 34:15--27, N.J.S.A., to modify the 'award' based upon an after occurring increase in disability, its dismissal would be required because the record lacks the necessary proofs to permit comparison of his condition and disability on the two dates, proofs which are essential to support a petition for an increased disability allowance. Hopler v. Hill City Coal & Lumber Co., 5 N.J. 466, 76 A.2d 17 (1950).

Hearings on the second petition were held May 23, July 11 and July 25, 1949. A formal award was entered September 22, 1949, determining the employee's permanent disability to be 7 1/2% Of total. A sum based on such disability had been paid in compliance with the 'award' of October 31, 1947; for that reason, the formal award of September 22, 1949, provided expressly 'that the petitioner is not entitled to any further permanent or temporary disability.'

The workman appealed to the Hudson County Court which evaluated the evidence as entitling him to an award of 17 1/2% Of total, and on March 11, 1950, the judgment under appeal so ordering was entered. The judgment also allowed Dr. Ajamian a fee of $200 for medical services to be paid by the employer. This appeal challenges the judgment in both particulars.

Appellant asks us to determine as between the percentage adjudged by the Deputy Director and that adjudged by the Hudson County Court and say the former's determination was right and the latter's was wrong. We have the impression appellant would cast this court in the role of umpire to select between the differing findings. This approach misconceives the authority of the County Court in a workmen's compensation case and the duty of this court in reviewing the County Court's judgment on appeal.

Originally the former Court of Common Pleas, to which the County Court succeeded, was the tribunal for the trial of elective compensation cases, P.L.1911, c. 95, p. 134. The trial judge was authorized 'to hear and determine such disputes in a summary manner, and his decision as to all questions of fact shall be conclusive and binding', Ibid, sec. 18, p. 142, which provision did not, of course, limit the jurisdiction of the former Surpeme Court by Certiorari.

A Workmen's Compensation Bureau in the Department of Labor was created by P.L.1918, c. 149, sec. 3, pp. 429--430, Zietko v. N.J. Manufacturers Casualty Ins. Co., 132 N.J.L. 206, 39 A.2d 417 (E.&A.1944), and was vested with 'exclusive jurisdiction' (sec. 3) of all such claims and authorized 'to hear and determine the matter in dispute in a summary manner' (sec. 10, as amended by P.L.1921, c. 229, § 3). The Bureau's judgment, however, was not to be final and conclusive If appealed (sec. 11). The Court of Common Pleas, in considering the appeal, while required to make its determination 'exclusively on the transcript of the record and testimony' before the agency (sec. 19, as amended P.L.1921, c. 229, sec. 7, pp. 734--735), nevertheless continued to have the duty originally imposed by section 18 of the 1911 Act; the 1921 Act provided in substantially the same language as the 1911 law that the court 'shall in a summary manner decide the merits of the controversy, and the judgment of the Court of Common Pleas, on any such appeal shall be conclusive and binding * * * provided, that nothing herein contained shall be construed as limiting the jurisdiction of the Supreme Court to review questions of law and fact by certiorari.'

It appears clear from this statutory history the Legislature in creating the Workmen's Compensation Bureau did not clothe that agency with the controlling authority to make factual findings in cases appealed to the Pleas, but continued that authority and duty undisturbed in the County Court; the burden of conducting the hearings, however, was delegated to the agency.

The County Court should, of course, consider the agency's findings of fact and give due, although not necessarily controlling, regard to the opportunity of the agency to judge of the credibility of witnesses.

It is clear, moreover, the factual findings to which determinative weight is in the first instance to be accorded by this court are the findings of the County Court. We on our part approach the review of the County Court's judgment on that premise. Of course, we are empowered under Rule 3:81--13 to review the facts and make independent findings thereon (cf. Rules 1:2--20 and 4:2--6) and, while this power is permissive and a litigant may not as a matter of right require our exercise of it, we do not hesitate to employ it where the ends of essential justice will be served by our doing so. In determining whether to accept the findings of the County Court or to make new findings, however, we give the determinative...