Rotino v. J. P. Scanlon, Inc.
| Decision Date | 28 August 1940 |
| Docket Number | No. 271.,271. |
| Citation | 15 A.2d 336,125 N.J.L. 227 |
| Parties | ROTINO v. J. P. SCANLON, Inc. |
| Court | New Jersey Supreme Court |
Proceeding under the Workmen's Compensation Act by Rosario Rotino, compensation claimant, opposed by J. P. Scanlon, Inc., employer, for a larger compensation because of alleged increased permanent disability. To review an adverse judgment of the court of common pleas affirming a dismissal of the claimant's petition by the Workmen's Compensation Bureau, the claimant brings certiorari.
Judgment affirmed.
Argued May term, 1940, before CASE, DONGES, and HEHER, JJ.
Nathan Baker, of Hoboken, and Edwin J. O'Brien, of Newark, for prosecutor.
Charles J. Gormley and Wall, Haight, Carey & Hartpence, all of Jersey City, for defendant.
We have for review a judgment in the Hudson County Court of Common Pleas which affirmed the dismissal by the Workmen's Compensation Bureau of prosecutor's petition for a larger compensation because of alleged increased permanent disability. The question is of fact as to whether there is an increase in permanent disability chargeable to the accident upon which the original award was made. The Bureau decided in the negative; the finding was that any increase that there has been is due to the natural progress of a pre-existing condition and that the workman has been fully compensated for any disability resulting from the accident. So, too, the Pleas on appeal.
We have, Anderson v. Federal Shipbuilding & Dry Dock Co., 118 N.J.L. 55, 191 A. 455, Grotsky v. Charles Grotsky, Inc., 121 N.J.L. 461, 3 A.2d 149, examined the testimony. There is proof both ways, but we conclude that it does not weigh down in favor of the prosecutor. Upon a petition to establish and obtain amended allowance for an increase or a decrease in disability the burden is upon him who asserts the change. Pasquale v. Clyde Piece Dye Works, 120 N.J.L. 557, 1 A.2d 45. Cf. Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72, at page 80, 186 A. 821, affirmed, 118 N.J.L. 301, 192 A. 62; also the Supreme Court opinion in Cirillo v. United Engineers & Constructors, Inc., 120 N.J.L. 225, 198 A. 768, reversed on other grounds 121 N.J.L. 511, 3 A.2d 596. The testimony of increase or of decrease must be predicated upon the condition and causes determined at the original hearing. Cirillo v. United Engineers & Constructors, Inc., 121 N.J.L. 511, 3 A.2d 596. The rule is particularly pertinent here for the reason that, against petitioner's contention on the original claim, claimant did, prior to the accident, suffer from earlier disease or injury disassociated from the employment, which was chargeable with a percentage of the disability. A judgment...
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Rotino v. J. P. Scanlon, Inc.
...for a larger compensation because of alleged increased permanent disability. From a judgment of the Supreme Court in certiorari, 125 N.J.L. 227, 15 A.2d 336, 752, which affirmed a judgment of the Court of Common Pleas, which had affirmed a dismissal of claimant's petition by the Workmen's C......
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Lieberman v. Warman
...1 A.2d 45; Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72, 80, 186 A. 821, affirmed 118 N.J.L. 301, 192 A. 62; Rotino v. J. P. Scanlon, Inc., 125 N.J.L. 227, 15 A.2d 336, 752. I find that petitioner has sustained the burden placed upon him by law in proving an increase in The respondent i......
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Ducci v. Kapo Dyeing & Print Works
...of testimony of the former trial and I feel that this case is controlled by the recent case of Rotino v. J. P. Scanlon, Inc., reported in 125 N.J.L. 227, 15 A.2d 336, and 752. The court in that case held that the burden of proof is upon the party asserting the change in disability, in this ......
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Breheny v. Essex County
...two conditions, namely, ‘one which was and one which is.’ Comparison is the yard stick of admeasurement. See, Rotino v. P. J. Scanlon, Inc., 125 N.J.L. 227, 228, 15 A.2d 336, 752, affirmed 126 N.J.L. 419, 19 A.2d 777. What was the nature and extent, or condition and ability, of petitioner a......