A. P. Smith Mfg. Co. v. Court of Common Pleas of Essex County

• Decision Date: 09 June 1930
• Docket Number: No. 216.,216.
• Citation: 150 A. 771
• Parties: A. P. SMITH MFG. CO v. COURT OF COMMON PLEAS OF ESSEX COUNTY et al.
• Court: New Jersey Supreme Court

150 A. 771

A. P. SMITH MFG. CO

v. COURT OF COMMON PLEAS OF ESSEX COUNTY et al.

No. 216.

Supreme Court of New Jersey.

June 9, 1930.

Proceeding under the Workmen's Compensation Act by Benjamin Kass, claimant, and opposed by the A. P. Smith Manufacturing Company, employer. To review a judgment of the court of common pleas, reversing an order of a commissioner of the Workmen's Compensation Bureau which dismissed claimant's petition for a rehearing, the employer brings certiorari.

Affirmed.

Argued October term, 1930, before TREN CHARD, LLOYD, and CASE, JJ.

Edwards & Smith, of Jersey City (Edwin F. Smith and Raymond Dawson, both of Jersey City, of counsel), for prosecutor.

John V. Laddey, of Newark, for respondent Kass.

LLOYD, J.

A writ of certiorari was allowed in this case to review the action of the common pleas court in reversing an order of a commissioner of the Compensation Bureau, which order dismissed the petition of Benjamin Kass for a rehearing of an award which had been adjusted eleven years before. Petitioner had an injury to the leg in 1916, and filed his petition in the Essex common pleas for compensation. On May 4, 1917, an award was made on this petition for the sum of $798.25, and a further sum of $10 per week for a period of 43 weeks. The order thus made was complied with and no payments had been made within the nine years preceding the filing of the petition in the present proceeding. In the application now being considered, it is claimed that there has been an increase of incapacity; that the injured leg, subsequent to the filing of the petition, was amputated in consequence of the injuries received in 1916.

During the period of Kass' employment, the original Workmen's Compensation Act of 1911 (P. L. p. 134) was in force and section 21 of that act provided: "An agreement or award of compensation may be modified at any time by a subsequent agreement, or at any time after one year from the time when the same became operative it may be reviewed upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased or diminished."

In 1919, this section (P. L. p. 211, § 8) was amended to the following effect: "(f) An agreement or award of compensation may be modified at any time by a subsequent agreement, or reviewed upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased or diminished."

By the same act section 23 of the Act of 1911 (P. L. 1919, p. 214, § 9) was amended respecting the limitation of time within which claims could be presented as follows: "(h) In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the Workmen's Compensation Bureau, at the State House, in Trenton, within one year after the date on which the accident occurred, or in case an agreement of compensation has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation."

The prosecutor under the...