Lazzio v. Primo Silk Co.

• Decision Date: 26 February 1935
• Docket Number: No. 206.,206.
• Citation: 177 A. 251
• Parties: LAZZIO v. PRIMO SILK CO.
• Court: New Jersey Supreme Court

177 A. 251

LAZZIO

v. PRIMO SILK CO.

No. 206.

Supreme Court of New Jersey.

Feb. 26, 1935.

Proceeding under the Workmen's Compensation Act by Gladys Lazzio, administratrix ad prosequendum of Rose Higglns, for the death of Rose Higgins, employee, against the Primo Silk Company. To review a judgment affirming a decision of the Workmen's Compensation Bureau dismissing claimant's petition, claimant prosecutes certiorari.

Reversed, with directions.

Argued October term, 1934, before TRENCHARD, HEHER, and PERSKIE, JJ.

Isadore Rabinowitz, of Paterson, for prosecutor.

Cox & Walburg, of Newark, for respondent.

PERSKIE, Justice.

The writ of certiorari seeks to review a judgment of the Passaic county court of common pleas which affirmed a judgment of the Workmen's Compensation Bureau dismissing the petition filed herein.

It appears, by stipulation in this case, "that an accident happened (to deceased employee) sometime in February (actual date February 11, 1930) arising out of and in the course of the employment with the respondent as a result of which she (deceased) developed a chronic synovitis of the right knee."

Paragraph 5 of the determination of facts and findings by the bureau states the result reached by it in the premises:

"(5) After a consideration of all the facts and circumstances, I find that when the amount of permanent disability becomes fixed and agreed upon by the parties, the respondent's liability to compensate becomes fixed and anything which a petitioner may do after the permanent disability becomes fixed cannot be binding upon the respondent, unless at that time further treatment is indicated." (Italics ours.)

"I further find as a fact that the chain of causation between the accident and the subsequent death was broken by the deceased herself after her permanent disability had been fixed and it was indicated that no further treatment would be of any avail, and, therefore, the respondent cannot be held liable for this voluntary act of hers."

The finding of the Passaic county court of common pleas discloses, inter alia, the following conclusion reached:

"(6) I am satisfied that there is no causal connection between the development of erysipelas and the synovitis, which was admitted to be the result of the accident." (Italics ours.)

Respondent concedes that the facts are, substantially, as set forth by the prosecutor. They are as follows: On March 19, 1931, Rose Higgins filed a petition for compensation as a result of an accident which she suffered, while employed by respondent, on February 11, 1930. She struck her right knee against a silk loom, as a result of which a chronic synovitis developed in said knee.

A hearing on this petition was held on June 23, 1931, at which time the commissioner made an award of 22 1/7 weeks temporary disability, which amount petitioner had already received, and permanent disability equivalent to 30 5/8weeks at $16.67 a week. The last payment matured on February 9, 1931. Compensation for the final 14 weeks of the period fixed by the commissioner remains unpaid. Payment thereof, $277, was tendered, and petitioner refused it. The undisputed fact should be here marked, and it was so stated by the commissioner, that the alleged compromise agreement, for the aforesaid compensation, dated October 27, 1931, was not signed by the petitioner. The fact is that she died, of erysipelas, on September 26, 1931.

On October 5, 1931, there was filed, in behalf of a daughter, Eleanor Higgins, 22 years of age (who is confined in an institution, and has been so confined for the past 15 years as a mental defective, and who was dependent upon her mother, Rose Higgins, deceased), the petition, here before us, for compensation under the Workmen's Compensation Act.

Among the objections raised against the right to the relief sought by the prosecutor is the one that the petition was filed out of time; i. e., the statute of limitation has run.

We hold this objection to be without merit. As already noted, the last compensation which ought to have been paid matured on February 9, 1931; this petition was filed on October 7, 1931. It was therefore clearly presented within the time prescribed by section 23(h) of the Workmen's Compensation Act, as amended by chapter 93, P. L. 1919, p. 201, 214 (Comp. St. Supp. 1924, § **236—32 subd. (h). Lusczy v. Seaboard By-Products Co., 101 N. J. Law, 170, 127 A. 212. "It matters not that decedent did not accept the payment tendered. The tender here was the equivalent of payment in the statutory sense." Hercules Powder Co. v. Nieratko, 113 N. J. Law, 195, 200, 201,173 A. 606, 609.

It is next urged that there is no provision in the Workmen's Compensation Act for an insane, adult child. This. objection is, in our opinion, also devoid of any merit Subdivision (g) of paragraph 12 of the act as amended (Comp. St. Supp. 1930, § **236— 12, subd. (g) defines the term "dependents." It, of course, includes "children." It requires or merits no extended discussion to point out that a physical or mental infirmity of a child does not rob it of its relationship to its parents. And it would indeed be a sad commentary if it were to be held that this outstanding, wholesome, and humane piece of social legislation did not apply or inure to the benefit of a child who, by reason of its physical or mental infirmity or incapacity, was made helpless. A dependent child who is mentally or physically infirm or incapacitated is clearly entitled to the benefits of the act. Nor does the fact that such child is legally unable to receive the compensation due it operate as a bar. Our Legislature provided for just such a contingency. Chapter 136, P. L. 1928, p. 288 (Comp. St. Supp. 1930, § **236—12a (1).

It is next argued...