Fierro v. Public Service Coordinated Transport
| Decision Date | 18 February 1957 |
| Docket Number | No. A--406,A--406 |
| Citation | 44 N.J.Super. 73,129 A.2d 470 |
| Parties | Rocco FIERRO, Petitioner-Appellee, v. PUBLIC SERVICE COORDINATED TRANSPORT, Respondent-Appellant. |
| Court | New Jersey County Court |
David M. Sellick, Newark, argued the cause for respondent-appellant.
Jacques H. Hecht, Newark, argued the cause for the petitioner-appellee (Charles Becker, Newark, attorney).
This is an appeal from a judgment rendered by the Deputy Director in the Division of Workmen's Compensation.
The petitioner, Rocco Fierro, met with a compensable accident on November 19, 1932. As a result, he was awarded compensation for temporary disability and subsequently for permanent total disability, his affliction being a skin disease found to be due to said accident. See Fierro v. Public Service Co-Ordinated Transport, 18 N.J.Misc. 597, 16 A.2d 72 (W.C.B.1940), affirmed 131 N.J.L. 552, 37 A.2d 649 (Sup.Ct.1944).
On August 5, 1944 petitioner filed a claim petition, claiming extended compensation under the provisions of R.S. 34:15--12(b), N.J.S.A. beyond the 400 weeks already allowed and paid for the permanent total disability. After hearing, a supplemental order was entered in the Workmen's Compensation Bureau directing the respondent to pay petitioner 153 4/7 weeks (or the lump sum of $3,071.43) which had accrued since the expiration of the payment for the 400 weeks, and further directing that the respondent continue to pay regular weekly compensation subject to the statutory provisions. The respondent has complied with this order and it continues to send petitioner weekly compensation payments.
On April 2, 1956 the petitioner filed a new claim petition with the Division of Workmen's Compensation for 'the purpose of reopening the matter to the end that an order be made * * * directing the respondent to pay the petitioner the sum of $7,507.00 * * *' for monies alleged to have been spent by the petitioner '* * * for medications, special services, replacement of clothes and sleeping necessities * * *,' all allegedly required as a result of the permanent disability previously adjudicated.
The petitioner annexed an affidavit to this claim petition, in which he recites the occurrence of the November 19, 1932 accident; his incapacitation, and the fact of the permanent compensation award. In paragraph 3 thereof he states:
After the hearing the Deputy Director found and determined that:
'The medications, special services, replacement of clothes and sleeping necessities as set forth in the affidavit annexed to the petition filed for reopening this matter are all required and made necessary as a result of the total permanent disability suffered by the petitioner while in the employ of the respondent in an accident which occurred on November 19, 1932.'
and ordered respondent to pay the cost of medication, special services replacement of clothes and sleeping necessities, for a period of 15 years to and including July 31, 1956 in the sum of $6,926.50, together with certain counsel and stenographic fees.
The respondent appeals.
Petitioner conceded during oral argument that the petition is properly brought under R.S. 34:15--15, N.J.S.A. which provides:
'The employer shall furnish to the injured workman such medical, surgical And other treatment, and hospital service as shall be necessary to cure And relieve the workman of the effects of the injury * * *.
'If the employer shall refuse or neglect to comply with the foregoing provisions of this section the employee may secure such treatment and services as may be necessary * * * and the employer shall be liable to pay therefor; provided, however, that the employer shall not be liable for any amount expended by the employee * * * unless such employee or any person on his behalf shall have requested the employer to furnish the same and the employer shall have refused or neglected so to do, or unless the nature of the injury required such services, and the employer or his superintendent or foreman, having knowledge of such injury shall have neglected to provide the same, or unless the injury occurred under such conditions as make impossible the notification of the employer, or unless the circumstances are so peculiar as shall justify, in the opinion of the workmen's compensation bureau, the expenditure assumed by the employee for such physicians' treatment and hospital services, apparatus and appliances.' (Emphasis supplied.)
According to the petitioner-respondent, the practice in the Division is to reopen the case on petition; such...
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