Gaeta v. Scott Paper Co.

• Citation: 81 A.2d 808,14 N.J.Super. 261
• Decision Date: 06 June 1951
• Docket Number: No. A--252,A--252
• Parties: GAETA v. SCOTT PAPER CO.
• Court: New Jersey Superior Court – Appellate Division

Page 261

14 N.J.Super. 261

81 A.2d 808

GAETA v. SCOTT PAPER CO.

No. A--252.

Superior Court of New Jersey

Appellate Division.

Argued May 7, 1951.

Decided June 6, 1951.

Felix Bigotto, West New York, argued the cause for the petitioner-respondent (Harold Krieger, Jersey City, attorney).

Sidney M. Schreiber, Newark, argued the cause for the respondent-appellant (McKeown, Schreiber, Lancaster & Demos, Newark, attorneys; Roger F. Lancaster, Newark, on the brief).

Before Judges EASTWOOD, BIGELOW and SCHETTINO.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The petitioner, Peter Gaeta, suffered a compensable accident. Prior to the filing of his claim petition, the employer had paid four-sevenths of a week temporary disability. Gaeta's claim petition is silent as to the relief he was seeking--it did not state whether he sought an award for either temporary or permanent disability, or both. The Division of Workmen's Compensation of the Department of Labor and Industry (hereinafter referred to as 'the Division'), awarded the employee four-sevenths of a week temporary disability and two and one-half per cent of total permanent disability neurologically. In his appeal to the Hudson County Court from the Division's award, the only ground asserted by the employee was 'insofar as permanent disability was concerned.' The county court increased the temporary disability from four-sevenths of a week to three weeks and partial permanent disability from two and one-half per cent to five per cent neurologically. The employer appeals from the whole of the county court's judgment.

With respect to the award for temporary disability, at the argument of the appeal before this court, it was conceded that there was no oral argument before the county court; that the appeal was submitted on briefs and that the briefs only raised and discussed the question of partial permanent disability. The employee contends that R.S. 34:15--66, N.J.S.A. requires the county court to try the appeal 'exclusively on the transcript of the record and testimony' and that the county court 'shall in a summary manner decide the merits of the controversy'. Per contra, the employer argues that notwithstanding the provisions of R.S. 34:15--66, N.J.S.A., the county court was limited in its consideration and determination of the appeal to the only ground of appeal asserted by the employee, to wit: the extent of the partial permanent disability. It is a rule of general application that a party shall not be heard in an appellate court on a point not raised or considered in the court below. Breheny v. Essex County, 134 N.J.L. 129, 45 A.2d 700 (E. & A. 1946). The question here, however is whether in view of the provisions of R.S. 34:15--66, N.J.S.A., the county court was warranted in considering and reversing the Division's award for temporary disability notwithstanding the fact that the question was not raised by the employee's appeal nor was it argued in the respective briefs of the parties. It is well established that the hearing of an appeal from the Division is, under the authority of R.S. 34:15--66, N.J.S.A., a trial De novo upon the record as presented and is for the purpose of providing a new mind for the consideration of the testimony adduced. Huber v. New England Tree Expert Co., 137 N.J.L. 549, 61 A.2d 89 (Sup.Ct.1948); affirmed 2 N.J. 53, 65 A.2d 514 (1949). In the Huber case, it was held that the Court of Common Pleas in reviewing a record in a workmen's compensation case, committed error by directing the inclusion of issues in the pleadings contradictory to the theory and proofs upon which the case was tried and directing what would be in essence a re-trial on amended pleadings. In the case of Pasquale v. Clyde Piece Dye Works, Inc., 120 N.J.L. 557, 1 A.2d 45 (Sup.Ct.1938), when the hearing before the Division had been conducted upon a theory which disregarded the precise issue raised by the pleadings, without objection the defeated party is estopped from urging as error a ruling of the trial court based upon the pleadings but which as applied to the issue as tried is correct. While the Huber and Pasquale cases are not altogether analogous to the case Sub judice and although R.S. 34:15--66, N.J.S.A., has been construed to authorize and direct a trial De novo before the county court, it is manifestly prejudicial to the rights of the employer that, when a ground of appeal is not asserted, discussed or argued by the appellant in prosecuting his appeal, the county court may of its own volition consider such an unasserted ground of appeal and reach a determination contrary to that of the Division. In the instant case, we think the employer was lulled into a sense of inaction when the appeal was submitted on briefs without any reference to that part of the Division's judgment, and the employee's failure to indicate any discontent therewith warranted the employer's assumption that the employee was entirely satisfied with the Division's finding. At all events, we think that we should exercise the authority granted us under Rule 1:2--20 and Rule 4:2--6, and find new or amended findings of fact with respect to the county court's judgment on this question. The employee testified that he was unable to resume work for several weeks after his accident. This testimony was sharply contradicted by his attending physician, Dr. Yeaton, who...