Vann v. M. P. Godkin Mfg. Co.

• Citation: 168 N.J.Super. 7,401 A.2d 691
• Parties: John VANN, Petitioner-Respondent, v. M. P. GODKIN MFG. CO., Respondent-Respondent, and Second Injury Fund, Respondent-Appellant.
• Decision Date: 01 May 1979
• Court: New Jersey Superior Court – Appellate Division

Page 7

168 N.J.Super. 7

401 A.2d 691

John VANN, Petitioner-Respondent, v. M. P. GODKIN MFG. CO., Respondent-Respondent and Second Injury Fund, Respondent-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued April 23, 1979.

Decided May 1, 1979.

Robert J. Haws, Deputy Atty. Gen., for appellant Second Injury Fund (John J. Degnan, Atty. Gen., attorney; Erminie L. Conley, Deputy Atty. Gen., of counsel).

Frank X. Cardiello, Union, for respondent M. P. Godkin Mfg. Co. (American Mut. Ins. Co.) (Galvin & Arnold, Union, attorneys; Alfred A. Arnold, Union, on the brief).

Robert W. Frieland, Newark, for respondent M. P. Godkin Mfg. Co. (Hartford Ins. Co.) (Henry S. Buchanan, Newark, attorney).

Freeman, Friedman, Wilson & Carney, Newark, for respondent John Vann (Herman M. Wilson, Newark, on the brief).

Before Judges CONFORD, PRESSLER and KING.

PER CURIAM.

The only meritorious issue purported to be presented by this appeal on behalf of the Second Injury Fund (Fund) is whether the advisory report of the judge of compensation recommending Fund liability for payment of petitioner's permanent total disability award beyond the initial statutory period of 450 weeks was justified by the facts and the law. The judge found such Fund liability, within the criteria laid down in Paul v. Baltimore Upholstering Co., 66 N.J. 111, 328 A.2d 610 (1974), on the basis that there were discrete elements of disability resulting from surgery consequent upon an earlier accident causally unrelated to the occurrence of or the condition arising from a later accident.

We are constrained to dismiss this appeal for lack of jurisdiction in the court. There is no reviewable judgment or decision before us for review, either final or interlocutory. The advisory report rendered by the sitting judge of compensation was entered pursuant to N.J.S.A. 34:15-95.1, which reads:

Application for benefits under this act shall be made by a verified petition filed in duplicate within two years after the date of the last payment of compensation by the employer or the insurance carrier addressed to the Commissioner of Labor of the State of New Jersey who shall refer it to a Deputy Commissioner of Workmen's Compensation to hear testimony and For an advisory report as to findings * * *. The decision, however, as to whether the petitioner shall or shall not be admitted to the benefits Shall be rendered by said Commissioner of Labor. Review of said decision shall be in accordance with section 34:15-66 of the Revised Statutes. * * * (Emphasis supplied) ¹

N.J.S.A. 34:15-66, in turn, permits appeal of a "judgment" of a judge of compensation to the Appellate Division of the Superior Court. We have no doubt that the decision of the Commissioner of Labor and Industry on a report by a judge of compensation is also so appealable. R. 2:2-3(a)(2). It is evident from the statutory scheme that no judicial review of an "advisory report" by a judge of compensation is contemplated, but only of the "decision" of the Commissioner of Labor and Industry on the report of the former.

The notice of appeal in this case purports...