Tucker v. Frank J. Beltramo, Inc.

• Decision Date: 25 August 1936
• Docket Number: No. 237.,237.
• Citation: 186 A. 821
• Parties: TUCKER v. FRANK J. BELTRAMO, Inc.
• Court: New Jersey Supreme Court

186 A. 821

TUCKER

v. FRANK J. BELTRAMO, Inc.

No. 237.

Supreme Court of New Jersey.

Aug. 25, 1936.

Proceeding under the Workmen's Compensation Act by Martin Tucker, to reopen the case and grant an award for increased disability, opposed by Frank J. Beltramo, Incorporated, employer. To review a judgment of the court of common pleas reversing the order of the workmen's compensation bureau granting additional compensation, the petitioner brings certiorari.

Judgment of court of common pleas reversed, and judgment of compensation bureau affirmed.

Argued May term, 1936, before BODINE and HEHER, JJ.

Nathan Rabinowitz, of Paterson (Isadore Rabinowitz, of Paterson, of counsel), for prosecutor.

Merritt Lane, of Newark, for respondent.

HEHER, Justice.

The primary question at issue is whether a "final judgment" awarding compensation to an injured employee under the Workmen's Compensation Act of 1911, Pamph.L. p. 134, as amended (Comp.St. Supps. § ** 236—-1 et seq.), where the issue was litigated and determined "on its merits," without in any wise "involving the elements of agreement," is a "formal award" within the intendment of paragraph 21 (f), sec. II, of the act, as amended by chapter 279 of the Laws of 1931, Pamph.L, p. 704 (N.J.St.Annual 1931, § **236—24), and therefore reviewable within two years from the date when the injured employee last received* payment of compensation on the ground that his incapacity "has subsequently increased." A secondary question is whether there has been in point of fact a subsequent increase of disability. The employee sued out a writ of certiorari; and, pursuant to its mandate, the record of the proceedings below has been returned for review.

The chronology and a resume of the pertinent facts and findings follow:

On February 14, 1933, prosecutor suffered injury by an accident which arose out of and in the course of his employment. His petition for compensation under the Compensation Act, supra, came on for hearing on October 23, 1933; and on October 30, 1933, the deputy commissioner made his findings. He resolved the basic issues in favor of prosecutor, and found the permanent disability to be "10% loss of use of the right hand." Neither side appealed, and the judgment was satisfied in due course. On February 10, 1934, the prosecutor, alleging increased disability, filed a petition for additional compensation; and, on October 16, 1934, after hearings held on March 19 and April 16, 1934, the deputy commissioner (he also heard the original petition) filed a determination of facts and rule for judgment dated September 24, 1934. He found that there had been a "progressive increase" in disability since the determination and judgment entered on the original petition, and that the disablement then was 30 per cent. of the normal use and function of the hand. Compensation was awarded on the basis of a 20 per cent. increase in incapacity.

The employer appealed; and the Passaic common pleas reversed the judgment, holding that paragraph 21 (f) of the Compensation Act was inapplicable where the issue of the right to compensation "was fully adjudicated on the merits after a litigated hearing with testimony adduced on both sides," and was followed by payment of the judgment, as distinguished from "a mere agreement or compromise formally approved by the bureau," citing Herbert v. Newark Hardware & P. S. Co., 107 NJ.Law, 24, 151 A. 502, 504, affirmed 109 NJ.Law, 266, 160 A. 492, and Federated Metals Corp. v. Boyko, 168 A. 672, 11 NJ.Misc. 807, affirmed 112 NJ.Law, 87, 170 A. 56. The judge found a substantial distinction between "final judgments" and "formal awards." He also concluded that the finding of increased disability was contrary to the weight of the evidence.

First. The initial point of inquiry is the legislative purpose embodied in chapter 279 of the Laws of 1931, supra, amending paragraph 21 (f), of the Compensation Act. If there be any apparent obscurity in the language employed, the true legislative sense of the words used will be readily resolved by a consideration of the state of the law at the time of the enactment of the amendments, and its historical background. The basic statute of 1911, supra, invested the courts of common pleas with original jurisdiction to enforce the rights thereby conferred. It provided (paragraph 20, section II, P.L.1911, p. 143) for a determination "in a summary manner" of "the merits of the controversy," and for the entry of judgment upon the judge's "determination * * * filed in writing with the clerk." The second unnumbered clause of paragraph 21, P.L.1911, p. 143, provided that "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 employe has subsequently increased or diminished."

In 1918, the compensation bureau came into being. The act creating it (chapter 149 of the session laws of that year, as amended by chapter 229 of the Laws of 1921) conditions all agreements for the payment of compensation made by the parties inter se upon the approval of the bureau, and transferred to that tribunal the original jurisdiction theretofore vested in the pleas. Pamph.L. 1918, p. 429, Pamph.L.1921, p. 731 (Comp.St.Supp.1924, § **236—42 et seq.). See, also, chapter 230 of the Laws of 1921, Pamph.L, p. 736 (Comp.St.Supp.1924, §§ **236—19, **236— 21, **236—33). It provides (paragraph 11, as amended (Comp.St.Supp.1924, § **236—52) that "a statement containing the date and place of hearing, together with the judgment of the commissioner, deputy commissioner or referee," shall be filed in the office of the secretary of the bureau, and that "a copy of the judgment of the commissioner, deputy commissioner or referee, if such judgment results in an award to the petitioner," shall be filed in the office of the clerk of the county in which the hearing was held, and, when so filed, shall have the same effect as judgments rendered in causes tried in the courts of common pleas. The bureau was given express authority to initiate an inquiry of its own in the event of failure of an "injured employee, or the dependents of a deceased employee" to file a petition for compensation, and, with the consent of such parties, to file the requisite petition. Comp.St.Supp.1924, § **236—45. The jurisdiction of the pleas "to modify any award of compensation" was also conferred upon the bureau (Comp.St.Supp.1924, § **236—51); and it was further provided (paragraph 11, as amended) that the "judgment" of the bureau shall be "final and conclusive between the parties and shall bar any subsequent action or proceeding, unless reopened by the said bureau or appealed" as therein provided.

In 1919, the Legislature eliminated from the clause in question, then lettered (f), the provision italicized above, permitting a review on the ground of a subsequently increased or diminished incapacity at any time after, and only after, the expiration of one year from the time when the agreement or award became effective (Pamph.L. 1919, pp. 201, 211, CompSt.Supp.1924, § **236—24 (f); and in Lusczy v. Seaboard By-Products Company, 101 NJ.Law, 170, 127 A. 212, our court of last resort read the clause, so modified, as evincive of a legislative intent to limit the phrase "at any time" to "a modification of the agreement by the parties," and to make the exercise of the function "to review" subject to the period of limitation laid down in paragraph 5 of chapter 149 of the Laws of 1918, Pamph.L. pp. 429, 431, as amended by chapter 229 of the Laws of 1921, Pamph.L. p. 731 (Comp.St.Supp.1924, § **236—46), since amended by chapter 280 of the Laws of 1931, Pamph.L. p. 708 (N.J.St.Annual 1931, § **236-46) and in clause (h) of paragraph 23, section 3, of the Compensation Act, as amended by chapter 93 of the Laws of 1919, Pamph.L. pp. 201, 214 (Comp.St.Supp.1924, § **236— 32 (h), since amended by chapter 279 of the Laws of 1931, Pamph.L. pp. 704, 707 (N.J.St.Annual 1931, § **236—32 (h). In thus finding a legislative purpose to limit, and not to extend, the time during which an agreement or award was subject to review, Mr. Justice Katzenbach said, and this seems to be the gist of the holding: "The limiting section of the act having been passed subsequent to the passage of the section providing for a review at any time, and containing a repealer of inconsistent legislation, must control." In view of the change of language, it is an entirely reasonable supposition that the Legislature found it impolitic to give a right of review without limit as to time, and intended to impose the limitation prescribed in the only provisions of the statutes in pari materia dealing with the subject, and referred to above. Sound policy ordains that a judgment dispositive of the merits shall have finality after the expiration of a reasonable period allowed for its reopening and review on appeal.

In Herbert v. Newark Hardware & P. S. Co., supra, Mr. Justice Parker held that these statutes did not apply to "a contested claim litigated and reduced to judgment, and the judgment paid and satisfied," and that the payment of the judgment "was not such a 'last payment of compensation' in the intendment of the statute as would support an application to 'review the award' within a year after such payment of the judgment."

This then was the settled judicial construction of the statute under consideration when section 21 (f) was amended in 1931 (N.J.St.Annual 1931, § **236—24); and we perceive no rational purpose in the amendment, unless it be to permit of a review of a final judgment "within two years from the date when the injured person last received a payment," on the ground of a subsequent increase of the incapacity, or at any time if it has diminished. There is, and then was, a statute of like general purport (though somewhat...