Lewicki v. New Jersey Art Foundry
| Decision Date | 07 November 1980 |
| Citation | 423 A.2d 645,176 N.J.Super. 358 |
| Parties | Frank LEWICKI, Petitioner-Appellant, v. NEW JERSEY ART FOUNDRY, Respondent-Respondent, and The Second Injury Fund, Respondent-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Samuel L. Marciano, Hoboken, for petitioner-appellant (Florio, Dunn & Marciano, Hoboken, attorneys).
Kathleen S. Murphy, Newark, for respondent-respondent New Jersey Art Foundry (Connell, Foley & Geiser, attorneys; George J. Kenny, Newark, of counsel).
Lois J. Gregory, Deputy Atty. Gen., for respondent-respondent Commissioner of Labor & Industry as custodian of the Second Injury Fund (John J. Degnan, Atty. Gen., attorney; Michael R. Cole, Asst. Atty. Gen., of counsel).
Before Judges ALLCORN, KOLE and PRESSLER.
The opinion of the court was delivered by
PRESSLER, J. A. D.
This is a workers' compensation case implicating questions of Second Injury Fund liability.
Petitioner Frank Lewicki was found by the judge of workers' compensation to be totally and permanently disabled as the combined result of the consequences of an industrial accident, an occupational pulmonary disease and a preexisting hypertensive condition. It was the judge's further finding that 10% of total disability was attributable to the occupational disease, 67% of total was attributable to the sequelae of the accident and that petitioner had also sustained a compensable partial binaural hearing loss, which was chargeable to his employer. The judgment entered against the employer-respondent therefore awarded petitioner 77% of total permanent disability and a 30% binaural hearing loss for a total of 4061/2 weeks of compensation.
In addition to the foregoing, the judge rendered an advisory opinion on petitioner's claim against the Second Injury Fund recommending Fund liability for the difference between the total permanent disability maximum of 450 weeks and the 4061/2 weeks charged against the employer. That recommendation was based on the judge's finding that the preexisting hypertension which combined with the compensable injuries to make petitioner totally disabled was an "other cause" which, pursuant to N.J.S.A. 34:15-95, rendered petitioner eligible for Second Injury Fund benefits. The Commissioner of Labor and Industry rejected the judge's recommendation and petitioner appeals.
Our review of the record persuades us that we must uphold the Commissioner's action. In a well-reasoned decision and order, the Commissioner concluded on the basis of the record that petitioner had failed to meet his burden of proving that the preexisting hypertensive disease upon which the judge predicated Fund liability constituted a permanent, disabling condition which was fixed, measurable and arrested at the time of the compensable injury. See Katz v. Howell Tp., 68 N.J. 125, 343 A.2d 417 (1975); Paul v. Baltimore Upholstering Co., 66 N.J. 111, 328 A.2d 610 (1974); Morello v. Baldanza Bakery, Inc., 105 N.J.Super. 575, 253 A.2d 583 (App.Div.1969). We are satisfied not only that the substantial credible evidence supports this conclusion but further that the judge's contrary conclusion lacked adequate record support.
We are aware of the potential anomaly of contrary findings by the judge and Commissioner and the prejudice potentially resultant therefrom when a petitioner is, as here, supportably found to be totally disabled. Indeed, this court has already recommended to the Legislature its reconsideration of the present decisional scheme of Fund liability whereby the judge recommends and the Commissioner decides, to the end that the judge be accorded dispositive adjudicative authority. See Vann v. M.P. Godkin Mfg. Co., 168 N.J.Super. 7, 10, 401 A.2d 691 (App.Div.1979). And we are further aware of the recent decision in Delesky v. Tasty Baking Co., 175 N.J.Super. 513, 420 A.2d 1022 (App.Div.1980) (decided September 29, 1980), in which the procedural anomaly was addressed by enunciation of a rule binding the Commissioner to the judge's recommendation if that recommendation is itself supported by substantial credible evidence. While we appreciate the policy concerns underlying Delesky, we nevertheless question the susceptibility of the present statutory scheme to the constraints which its holding would impose upon the Commissioner's right to independently review and evaluate the record. In any event, even if Delesky were the law, we are satisfied, as we have already noted, that the judge's recommendation did not rest upon an...
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Lewicki v. New Jersey Art Foundry
...69 Frank LEWICKI v. NEW JERSEY ART FOUNDRY. Supreme Court of New Jersey. Feb. 18, 1981. Petition for certification granted. (See 176 N.J.Super. 358, 423 A.2d 645). ...