Ducci v. Kapo Dyeing & Print Works

• Decision Date: 09 January 1942
• Parties: DUCCI v. KAPO DYEING & PRINT WORKS.
• Court: New Jersey Supreme Court

23 A.2d 786

20 N.J.Misc. 47

DUCCI

v. KAPO DYEING & PRINT WORKS.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Jan. 9, 1942.

Proceeding under the Workmen's Compensation Law by John Ducci, claimant opposed by the Kapo Dyeing & Print Works, employer.

Petition dismissed.

Nathan Rabinowitz, of Paterson, for petitioner.

Stanley U. Phares, of Elizabeth, for respondent.

JOHN J. STAHL, Deputy Commissioner.

A claim petition having been filed in regard to the above entitled matter seeking recovery for an alleged increase of permanent disability and an answer having beep thereto filed by the respondent the same came on for hearing before me, a Deputy Commissioner of Labor, in the Workmen's Compensation Bureau at Paterson, New Jersey.

The testimony took several days, the only issue involved being the question as to whether the petitioner's disability had increased from the date of last hearing.

The history of this case briefly is as follows: The petitioner on December 30, 1935, strained his back while working for the respondent. He received some treatment and lost several months from work and it appears that about three years prior to this date he had another accident to his back namely on August 11, 1933, and at that time lost approximately five months from his work. The first petition filed for the accident of December 30, 1935, was settled on July 7, 1936, for 5% of total. Subsequently another petition was filed claiming an increase of disability and a former trial was held on December 1, 1936, and a judgment was entered to the effect that the petitioner's disability had not increased. Subsequently thereto a third petition was filed which resulted in a rather lengthy trial with a considerable amount of testimony being taken. This trial resulted in an award being entered under date of April 19, 1938, allowing to the petitioner temporary disability as paid plus a permanent disability of 15% of total of which 5% was paid leaving a balance due of 10%. Immediately following said disposition of the case, the petitioner entered the Orange Memorial Hospital and received certain treatments and then a fourth petition was filed, likewise alleging an increase of permanent disability. This petition was disposed of by a formal trial, the same consuming several days testimony, and an award was entered under date of August 31, 1939, to the effect that the petitioner had failed to prove that his disability had increased since the date of last hearing and further finding that the treatment rendered to the petitioner was unauthorized by the respondent and unnecessary and therefore not chargeable to the respondent. The fifth and present petition was filed December 26, 1939, and remained on the trial list for approximately a year and a half before it was moved for trial by the petitioner. Again a lengthy trial was held and the testimony therein consumed several trial days.

I have had an opportunity to hear all the testimony in the present trial and to observe the witnesses on the witness stand and their demeanor in answering questions both on direct and cross-examination. I have also had an opportunity to observe the petitioner day after day as he sat in the court room and also as he was demonstrated before me on various occasions. In addition thereto I have been afforded the opportunity of reading the transcript of testimony of the former trial and I feel that this case is controlled by the recent case of Rotino v. J. P. Scanlon, Inc., reported in 125 N.J.L. 227, 15 A.2d 336, and 752. The court in that case held that the burden of proof is upon the party asserting the change in disability, in this case the petitioner. The language used by the court is as follows: "Upon a petition to establish and obtain amended [compensation] allowance for an increase or a decrease in disability the burden is upon him who asserts the change. * * * The testimony of [increased or decreased disability] must be predicated upon the condition and causes determined at the original hearing."

A brief analysis of the medical testimony shows that there is some opinion evidence given by the doctors on behalf of the petitioner of some change in his condition. I refer to Dr. Max Kummel and Dr. M. Weinstock Bergman. There was also some testimony by Dr. Roemer who was produced on behalf of the petitioner that recent X-rays showed some arthritic changes. This I believe was also corroborated by Dr. Russel. However, I am of the opinion that the minor arthritic changes as revealed in X-rays taken over a period of 6 years are not particularly important. It is not unusual for arthritic changes to take place...