Ferraro v. Zurcher

• Decision Date: 20 February 1951
• Docket Number: No. A--1,A--1
• Parties: FERRARO v. ZURCHER et al.
• Court: New Jersey Superior Court — Appellate Division

Page 231

12 N.J.Super. 231

79 A.2d 473

FERRARO v. ZURCHER et al.

No. A--1.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 5, 1951.

Decided Feb. 20, 1951.

James J. Skeffington, Newark, argued the cause for defendants-appellants.

Harry Krieger, Newark, argued the cause for plaintiff-respondent.

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

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.A.D.

Appellant insurance company filed with the Division (then styled Bureau) of Workmen's Compensation a duly executed Form 3 (R.S. 34:15--98, N.J.S.A.) dated December 21, 1945, undertaking to pay petitioner workmen's compensation for permanent total disability. The bureau approved the agreement by an executed Form 5(a) dated February 13, 1946 (R.S. 34:15--50, N.J.S.A.). Payments were made under the agreement until October 13, 1946 when they were stopped. Petitioner filed his claim petition on May 26, 1948. The deputy director after hearing found that petitioner's disability did not exceed 20 to 25 per cent permanent partial disability and dismissed the petition by determination entered May 31, 1949 because the payments which had been made under the agreement exceeded the compensation payable for such disability. The Passaic County Court on appeal found that petitioner had suffered permanent total disability and on August 23, 1950 entered judgment accordingly. Defendants appeal.

Petitioner argues that the approval of the agreement set forth in Form 5(a) issued by the bureau has the force of a judgment binding upon appellants subject to modification only if the appellants have proved a diminution of disability in accordance with R.S. 34:15--27, N.J.S.A. Not so. An approval pursuant to R.S. 34:15--50, N.J.S.A., which is what the approval was, is not a determination upon the merits and thus is not a finality to be reopened only to the extent permitted by R.S. 34:15--27, N.J.S.A. Form 5(a) itself provides 'If payments are not made as set forth (or if, for any reason, there should be a modification of this settlement) this Bureau should be notified at once.' The Division of Workmen's Compensation was powerless to view that approval as final. Nagy v. Ford Motor Co., N.J., 78 A.2d 709 (1951); Donofrio v. Haag Bros., Inc., 10 N.J.Super. 258, 77 A.2d 42 (App.Div.1950). Before there exists an adjudication of the extent of disability which may be modified only under R.S. 34:15--27, N.J.S.A. (that is, when, as here, the only issue involved is the extent of disability), there must be a determination and rule for judgment which includes a finding of fact as to the amount of the then present disability and which is entered after hearing in open court upon consideration of the sworn testimony of petitioner and other witnesses present together with any 'stipulations of the parties' and which otherwise satisfies the requirement of the proviso to R.S. 34:15--22, as amended by L.1945, c. 74, p. 390, effective April 2, 1945, N.J.S.A.

No agreement between an employee and employer or insurance carrier for compensation not approved by a hearing deputy in open court operates as a bar to the formal determination of any controversy. R.S. 34:15--22, N.J.S.A.; Nagy v. Ford Motor Co., supra. When payments under the agreement stopped, petitioner availed himself of the remedy provided by R.S. 34:15--51, N.J.S.A., that is, he filed his petition within two years after the last payment for an original and formal adjudication of his claim upon the merits. The burden of proof upon that petition was not upon appellants to prove a decrease of disability but upon petitioner to sustain by preponderant evidence the claim asserted therein that his permanent disability was total.

At best the agreement was some evidence against appellants as a declaration against interest. Miller v. National Chair Co., 127 N.J.L. 414, 423, 22 A.2d 804 (Sup.Ct.1941), affirmed 129 N.J.L. 98, 28 A.2d 125 (E. & A.1942). It spoke, however, as of December 21, 1945, and upon this record was not of itself sufficient proof to sustain the allegation of permanent total disability made in the petition filed May 26, 1948. Cf. Burns v. Edison, 92 N.J.L. 288, 105 A. 717 (Sup.Ct.1919); Dubies v. Manufacturers' Liability Insurance Co., 96 N.J.L. 107, 114 A. 309 (Sup.Ct.1921), affirmed 97 N.J.L. 567, 117 A. 926 (E. & A. 1922); Craciola v. Lewis, 233 App.Div. 437, 253 N.Y.S. 752 (App.Div.1921); Lanni v. Amsterdam Building Co., 217 App.Div. 278, 216 N.Y.S 763 (1926); Anthus v. Rail Joint Co., 193 App.Div. 571, 185 N.Y.S. 314 (App.Div.1920), affirmed 231 N.Y. 557, 132 N.E. 887 (1921); O'Boyle v. Harry Seitz & Sons, 105 Pa.Super. 135, 160 A. 145 (Super.Ct.Pa.1932).

The question for our decision is what percentage of permanent disability was proved. In our approach to the problem determinative weight in the first instance is given to the factual findings of the County Court. Donofrio v. Haag Bros., Inc., supra; McGowan v. Peter Doelger Brewing Co., 10 N.J.Super. 276, 77 A.2d 46 (App.Div.1950). We are empowered, however, in our discretion, to make independent findings of fact when the interests of justice require it, and our review of this voluminous record persuades us that we should do so in this case. Rule 3:81--13 (cf. Rules 1:2--20 and 4:2--6).

Petitioner was 67 years of age when on August 25, 1943 he suffered a serious brain injury by falling from a garbage truck on which he was working for the defendant Zurcher. He suffered a subarachnoid hemorrhage, although there was no skull fracture. He was hospitalized for seven weeks. Three weeks after the accident the insurance company retained Dr. Bohl to attend him; Dr. Bohl treated him thereafter and for a considerable period after his discharge from the hospital on October 13, 1943. The doctor's opinion in 1945 was that petitioner was totally disabled and upon that opinion the insurance company prepared and filed the Form 3 agreement of December 21, 1945. Dr. Bohl re-examined petitioner on October 12, 1946 and concluded he had made 'a remarkable recovery' and that his then present overall permanent partial disability did not exceed 20 to 25%. The insurance company discontinued payments under the agreement the following day, October 13, 1946.

The petitioner had performed arduous manual labor all his life. His testimony at the hearing and his complaints to his own medical witness, Dr. Policastro, when that doctor examined him on June 1, 1948, and to Dr. Blumberg, appellants' medical witness, who examined him on January 3, 1949, were of alleged virtual loss of memory, persistent pains through the back and head, dizziness, constant fatigue and, as a result complete incapacity to do any kind of sustained laboring work, that when he tried to work, which he said was usually only around his garden, and once when he tried to help in the building of his church, and again when he tried to take a job with the Borough of West Paterson, his weakness and dizziness and the pains in his back forced him to stop. Both Doctors Policastro and Blumberg accepted these complaints as residual consequences of his injury, and based thereon, Dr. Blumberg, appellants' witness, like Dr. Bohl, the treating physician, originally held the opinion that petitioner was totally disabled.

The appellants' proofs showed that petitioner had exaggerated his condition and symptoms in a very substantial degree. His responses on cross-examination to questions concerning past events exploded his claim of loss of memory. He had been under surveillance by the insurance company since July 11, 1946 when the carrier was told by defendant Zurcher that he had seen petitioner digging a trench with pick and shovel. The carrier's then claim manager took motion pictures and still photographs of him on five days in July, 1946 showing him digging the trench and using a pick and shovel, shoveling dirt from the road into a truck and lifting and carrying heavy hose. It was in the following October that Dr. Bohl re-examined him and that payments under the agreement were discontinued. After the petition was filed on May 26, 1948, more motion pictures and still photographs were taken at intervals on nine days in the subsequent months of August, September and October. They showed petitioner digging another trench, hoeing weeds and cleaning up fill at an excavation. In March, 1949, while the hearings were in progress, still more motion pictures and photographs were taken showing him working in his garden with pick and shovel and doing labor work at a development of the Garrett Park Land Company. There was also evidence that the Borough of West Paterson had paid him $768.13 for laboring work over the three year period from the fall of 1945 to the fall of 1948, and that Garrett Park Land Company paid him $509.92 for work as a handyman performed from time to time during the year 1948.

The County Court was not justified on this record in accepting petitioner's testimony as true and in reaching its conclusion in unqualified reliance upon the opinion of his doctors, particularly that of Dr. Policastro, who had based his judgment largely upon his belief in the truth of the symptoms related to him by petitioner. Dr. Policastro testified on January 6, 1949 and did not see the pictures, which were put in evidence on March 31, 1949 without, we may suppose, prior knowledge by petitioner or his attorney of their existence. It is a reasonable inference that Dr. Policastro's opinion would have been influenced by the activities of petitioner indicated by the pictures in light of their substantial impeachment of petitioner's recital of symptoms and the impression he made when the doctor examined him, 'passive,' 'dazed and emotionless attitude,' 'uncertain gait,' 'he walked with a wide step, like a drunkard,' upon which the doctor's opinion was so largely premised. Too, it must count against petitioner that he did not take the stand in rebuttal to attempt to reconcile his...