Smith v. Klemm

• Decision Date: 27 July 1937
• Docket Number: No. 204.,204.
• Citation: 193 A. 790,118 N.J.Law 471
• Parties: SMITH v. KLEMM.
• Court: New Jersey Supreme Court

193 A. 790

118 N.J.Law 471

SMITH

v. KLEMM.

No. 204.

Supreme Court of New Jersey.

July 27, 1937.

Proceeding under the Workmen's Compensation Act by Paul J. Smith opposed by Theodore Klemm t/a the West Hudson Decorating Company, employer. To review the Compensation Bureau's denial of compensation, the claimant brings certiorari.

Remanded for a determination of facts.

Argued January term, 1937, before BROGAN, C. J., and CASE and PERSKIE, JJ.

H. C. Dolan, of Newark, for appellant. Henry Grosman, of Newark (Isidor Kalisch, of Newark, on the brief), for appellee.

BROGAN, Chief Justice.

This is a workmen's compensation case and is before us on a writ of certiorari, the employee appearing as prosecutor. That this case presents a most unusual situation will be clear when the following pertinent facts, as they appear in the state of the case, are read. We find a claim petition for compensation without date or number or any indication to show just when it was filed in the Workmen's Compensation Bureau.

We gather from the petition that the employee seeks increased compensation; that the accident happened on October 10, 1930; that the injuries arose out of and in the course of the employment, are permanent in character, and alleged to consist of a displaced fracture of the right hip and pelvis, shortening of the right leg, disability to the back, as well as curvature of the spine. Petitioner asserts that he is totally and permanently disabled. His weekly wages were $50, and the employer has, since the accident, paid the employee $2,497.14 by agreement, not by award of the. bureau.

The respondent employer filed an answer which was sworn to on March 11, 1933. Many of the questions on the printed form for making answer carry no reply; others convey no information. As an example of the latter, we find: "No. 22. Give your understanding of any permanent injury which has resulted, either amputation or loss of usefulness of any member or impairment of any physical organ. Explain fully." The employer's reply is: "No knowledge." This answer is made twenty-eight months after the accident. In reply to the twenty-ninth question, the employer answers that he has paid $2,497.14 to the employee as compensation, not including medical aid. In reply to a later question, the employer answers: "Petitioner has already been paid compensation for 20% of total permanent disability and respondent contends that he has been liberally and fully compensated for his disability resulting from the alleged accident."

The next page in the record reveals an order dismissing this petition which recites that a formal petition was filed, praying for compensation for increased disability, and an answer was filed by the respondent denying that there is any increase in the disability, and a finding that the disability of the petitioner has not increased beyond the amount paid, namely, 20 per cent. of total. Thereupon the deputy commissioner of labor, on May 23, 1933, signed the order dismissing the petition.

We turn to the record upon which this order of dismissal was predicated and find no testimony from any witness as to what the injuries and the resultant disabilities were. We find that counsel for the employer stated that the petitioner suffered an accident on October 10, 1930; that compensation for temporary disability had been paid in full; and that, in addition, respondent had paid petitioner for partial, permanent disability in the sum of 20 per cent. of total. Then counsel said this was an application for compensation for increased disability over and above that sum and that the employer contended the petitioner had been fully compensated and that the petition should be dismissed. Thereupon a Dr. Markens, presumably a witness for the petitioner (although there is nothing to indicate whether this medical witness or the one who followed him testified for the petitioner or the employer), was sworn. This witness said that he examined the petitioner on July 6, 1932, and that at that time he "felt that the disability was 20% of total"; that he examined him twice since that time and his findings were almost identical with those of his first examination; and that in his judgment the petitioner had no increased disability.

A second medical witness, a Dr. Robbins, said he had examined the petitioner "once in January and once in May." The year is not stated. He then says: "My findings were as those of Doctor Marken's. I agree that there is a definite, permanent disability of 20%." Thereupon the petitioner was called to the stand by his own counsel, who addressed the petitioner in these words: "Mr. Smith, your petition is being dismissed at the present time and you cannot apply to this court to reopen this case and in consideration thereof you are going to receive payment from the company in the amount of $850 and out of that the expenses will be $215, leaving you a balance of $635. You understand that this is all you can ever receive from this company for these injuries?" To which the petitioner answered, "Yes," and further that he was satisfied with that arrangement. Thereupon counsel for the employer, under the heading of cross-examination, said:

"Mr. Smith, you understand that we are not paying you because we believe you have any increased disability. We are paying you this money in consideration of this waiver of right of appeal of this order of dismissal? A. Yes.

"Q. If the court dismisses this case today you must appeal from the order within thirty days and if you don't appeal then the order stands and we will pay you this money in consideration of your waiver of the right to appeal? A. Yes.

"Q. And that means that your case is finally closed? A. Yes.

"Q. And you can at no future time make future application for compensation? A. Yes."

Then there was a question to the petitioner by his own lawyer: "Q. And you understand that you have to wait thirty days for this money? A. Yes." Then a further question by counsel for the employer: "Q. And this is agreeable to you? A. Yes." The deputy commissioner then said: "After listening to the testimony of the various doctors and the petitioner and the respondent, I feel that the petitioner has been amply compensated by the payment of 20% of total and the petition is hereby dismissed." That ended the testimony.

The foregoing is virtually a verbatim reproduction of the entire testimony.

In view of the statute, practice such as this, leading to a result where an employer or his insurance carrier simply purchases a release from the workman, cannot meet with judicial approval. The petitioner, as stated above, was not heard concerning his injuries or the then state of his disability, nor did the medical witnesses state what the petitioner's injuries consisted of, what functional disability resulted, nor relate in any manner just how they arrived at their conclusions, which were in entire accord one with the other. The object was to dispose of the claim for increased disability and to accomplish it by an agreement not to appeal (for that is what it was in substance), the consideration of which was the promise to pay a lump sum of $850, after the right to appeal from the dismissal of the petition had lapsed.

The philosophy and aim of the Workmen's Compensation Act is to provide weekly compensation, continuously over a proper period, as fixed by law, in lieu of wages. The injured workman may not legally and...