Giacchi v. Richmond Bros. Co.

• Decision Date: 14 March 1951
• Docket Number: No. A--714,A--714
• Citation: 78 A.2d 109,11 N.J.Super. 76
• Parties: GIACCHI v. RICHMOND BROS. CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 76

11 N.J.Super. 76

78 A.2d 109

GIACCHI v. RICHMOND BROS. CO.

No. A--714.

Superior Court of New Jersey.

Appellate Division.

Argued Dec. 18, 1950.

Decided Jan. 2, 1951.

Opinion Adhered to on Rehearing March 14, 1951.

See 79 A.2d 488.

Walter X. Trumbull, Newark, argued the cause for petitioner-appellee (Francis Nunziant, Newark, on the brief).

Isador Kalisch, Newark, argued the cause for respondent-appellant (Kalisch & Kalisch, Newark, attorneys)

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

The opinion of the court was delivered by

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

This is a workmen's compensation case. The employee suffered injuries in an accident on May 17, 1941. His original claim petition eventuated in an award dated November 16, 1943, fixing his permanent disability at 50% Of total. His second claim petition, seeking an award for increased disability, resulted in an award made July 27, 1948, based on a finding his permanent disability at that time was 60% Of total. His third claim petition, which gave rise to this appeal, sought an allowance for an alleged further increase in disability, and on February 27, 1950, an award was made in the Division of Workmen's Compensation based on a finding his disability was 100%, permanent total. The Essex County Court affirmed by its judgment entered June 22, 1950, from which judgment the employer appeals.

The single question argued is whether the concurring finding of permanent total disability by the Division of Workmen's Compensation and the County Court was supported by sufficient evidence that the employee's incapacity had increased so as to warrant a judgment based on such finding.

While this court will not exercise its discretionary power under Rule 3:81--13 (cf. Rules 1:2--20 and 4:2--6) to overthrow a factual finding separately arrived at in a workmen's compensation case by two independent tribunals and based upon sufficient evidence, Giresi v. E. I. duPont deNemours & Co., Inc., 7 N.J.Super. 41, 71 A.2d 725 (App.Div. 1950); Coronato v. Public Service Coordinated Transport, 4 N.J.Super. 1, 66 A.2d 196 (App.Div. 1949), we will reverse when we are satisfied the finding is not supported by sufficient evidence. See Cirillo v. United Engineers & Constructors, Inc., 121 N.J.L. 511, 3 A.2d 596 (E. & A. 1938).

The burden of proof of an employee seeking an award for increased disability is not satisfied by proof merely of his present absolute impairment but he must show by sufficient evidence a causally connected increase additional to the impairment adjudicated in the last determination. Cirillo v United Engineers & Constructors, Inc., supra; Hopler v. Hill City Coal & Lumber Co., 5 N.J. 466, 76 A.2d 17 (1950). Our examination of the record here satisfies us the employee did not meet this burden in this case.

Dr. Goldberg was the employee's only medical witness. He had first examined the employee December 11, 1947, after the first award and had expressed his opinion at the hearing on the second petition that the employee's permanent disability was 75% Of total. At the hearing on the instant petition he stated his opinion there had been an increase in permanent disability since that time of 'approximately' 25% Of total, meaning of 25% Over the 75% He had testified to at the earlier hearing. He stated, however, that a part of the increased incapacity was attributable to a developing arteriosclerotic condition and a vascular disease neither of which, as he admitted, was causally related to the accident. When pressed to say what part of the 25% Increase in disability was attributed by him to the arteriosclerotic and vascular conditions, he testified, 'It would be hard to...