Napoleon v. Jersey City Coal & Ice Co.

• Decision Date: 03 December 1935
• Citation: 181 A. 880
• Parties: NAPOLEON v. JERSEY CITY COAL & ICE CO.
• Court: New Jersey Supreme Court

181 A. 880

NAPOLEON

v. JERSEY CITY COAL & ICE CO.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Dec. 3, 1935.

Proceedings under the Workmen's Compensation Act by Matthew Napoleon, employee, opposed by the Jersey City Coal & Ice Company, employer.

Award granted.

Levitan & Levitan, of Jersey City, for petitioner.

Wall, Haight, Carey & Hartpence, of Jersey City, for respondent.

WEGNER, Deputy Commissioner.

I do find and determine from the evidence taken in this cause as follows:

1. That the petitioner was on the 24th day of March, 1928, in the employ of the respondent in the capacity of coal carrier.

2. That at the time of the injury the said Matthew Napoleon received as wages in said employment, the sum $38 per week.

3. That on the 24th day of March, 1928, the said Matthew Napoleon, while in the course of his employment, and engaged in the work of carrying coal for respondent, injured his left foot on a nail which caused serious infection of the left foot, which subsequently developed into osteomyelitis affecting the last metatereal of the left foot.

4. That the respondent herein had knowledge of said accident, and has had proper notice of the same.

5. That respondent did not deny said accident and under date of March 28, 1930, stipulation and judgment was signed allowing petitioner temporary compensation from March 24, 1928, the date of the accident, to March 3, 1930, and a permanency of 33 1/3 per cent. of the left foot or 43 3/4 weeks' compensation at the rate of $17 per week.

6. That subsequently petitioner filed a formal petition alleging further temporary disability and increased permanency as well as an injury to the right leg.

7. That respondent again settled with the petitioner allowing him permanent compensation based upon 12 1/2 total or 62 1/2 weeks at $17 per week. This was to cover temporary and permanent disability alleged, and at that time it was agreed that there was no disability to the right leg as the result of the accident. This order was signed July 19, 1932, and the respondent argues that same was a complete and final close-out.

8. That on May 27, 1933, petitioner again filed a petition alleging an increased disability. No claim was made for temporary disability. Under date of September 13, 1933, the attorney for the petitioner discontinued the action on petition for increased disability.

9. That on January 17, 1935, a petition was again filed by petitioner for permanent injury to the left and right legs.

10. That this petition was filed within two years of the last payment of compensation, the last payment being made April 29, 1933.

11. That respondent in its answer contends that the settlement of July 19, 1932, was a full and final close-out, that the Workmen's Compensation Bureau has no jurisdiction and the statute of limitation applies.

12. That on May 23, 1935, respondent moved for dismissal of petition on the above grounds, which motion was denied for reasons hereinafter stated. Respondent subsequently moved for dismissal on July 25, 1935, and again on October 22, 1935.

13. That the motion of the respondent for dismissal on the ground of the statute of limitations was denied under the authority of the cases of McLaughlin v. Hahne & Co., 169 A. 542, 12 N.J.Misc. 6, and Ecken v. O'Brien, 115 N.J.Law, 33, 178 A. 373.

13a. That under the cases of Federal Leather Co. v. DeRensis, 113 N.J. Law, 235, 174 A. 163, and Anderson v. Public Service Electric & Gas Co., 114 N.J.Law, 515, 177 A. 865, referred to in the case of Ecken v. O'Brien, supra, before a case can be held to be a full and final close-out, testimony must be taken on the merits of the case. This case further holds that if the order has the elements of a final award and judgment, it is reviewable under section 21(f) of the act as amended by P.L. 1931, c. 279, N.J.St. Annual 1931, § **236—24, subd. (f), upon the grounds of increased disability.

14. That from the testimony of the petitioner and his doctors it would appear that the condition had healed but subsequently broke down and petitioner has needed treatment off and on since the date of the accident. In the testimony taken at the hearing of July 7, 1932, it was found that Dr. Saul Kleinberg, who treated petitioner, testified for respondent, and stated that he first examined petitioner in January, 1929, found an osteomyelitis of the left foot, between that time and the latter part of 1930, operated upon him three times and discharged him in January, 1932, healed. Six other doctors testified for both petitioner and respondent, and testified that the condition they found as of July 7, 1932, was stationary and temporary disability had ended previous to that date. There is the testimony taken in connection with the...