Vogel v. Red Star Exp. Lines, A--552

• Decision Date: 24 April 1962
• Docket Number: No. A--552,A--552
• Citation: 73 N.J.Super. 534,180 A.2d 351
• Parties: Charles VOGEL, Petitioner-Respondent, v. RED STAR EXPRESS LINES, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 534

73 N.J.Super. 534

180 A.2d 351

Charles VOGEL, Petitioner-Respondent, v. RED STAR EXPRESS LINES, Respondent-Appellant.

No. A--552.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 8, 1961.

Decided April 24, 1962.

John W. Taylor, East Orange, attorney for appellant.

Aaron Gordon, Jersey City, attorney for respondent.

David D. Furman, Atty. Gen., attorney for the One Per Cent Fund (Stephen F. Lichtenstein, Trenton, of counsel).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Red Star Express Lines appeals from a County Court judgment dismissing its appeal from a determination of the Workmen's Compensation Division that it is liable to petitioner Vogel for the extended workmen's compensation benefits required by N.J.S.A. 34:15--12(b), beyond its admitted liability for 450 weeks of permanent and total disability benefits.

The background circumstances are somewhat unusual. We have a situation where petitioner suffered two successive and quite similar accidents while checking and handling freight in appellant's employ. The first occurred on August 23, 1952 and the second on October 4, 1952. He filed two claim petitions in the Division on May 23, 1953. The first alleged that on August 23, 1952, while lifting a heavy bundle and turning with it, petitioner injured his back. The claim was that he had suffered permanent injury 'to back, spine and neurological complications' (sic). The employer was notified of the injury on October 3 following. Petitioner lost no time from work. The second petition alleged that on October 4, 1952, while unloading a carton weighting about 275 pounds, petitioner felt a stabbing pain in his back; that he had stopped work on October 6 and was 'still unable to work.' Permanent injury was again claimed, described as before--'to back, spine and neurological complications.'

The parties have stipulated (the stipulation appears in a consent order entered prior to the ensuing County Court proceedings, and accurately reflects what we have found in the transcripts, which we called for and consulted) that the claim petitions were consolidated for hearing in the Division on the premise that petitioner had 'a combined disability flowing from the two accidents,' each of which involved the 'same part of the body.' At the hearing the estimates of permanent disability testified to by the doctors produced by both petitioner and employer were not separated but given as the combined result of the two accidents. We find that the testimony of neither doctor permitted a determination of the percentage of partial permanent disability that could be allocated to each accident. On July 11, 1955 Deputy Director Lorenz, who presided at the hearing, awarded partial permanent disability of 20% 'as a result of the two accidents.' He did not find that each accident respectively caused any degree of partial permanent disability. There was no appeal from the award, and it was paid in full.

On June 24, 1957 petitioner filed two petitions, one for each accident, claiming increased permanent disability compensation on the ground that his physical condition had deteriorated since the 1955 award. Again the petitions were consolidated, and after a full hearing Deputy Director Kaltz entered an increased permanent disability judgment on October 23, 1958. He found 100% Total permanent disability (or 450 weeks) 'for injuries which are orthopedic and neurological in nature and cannot be separated,' and ordered the employer to pay the difference between the earlier finding of 20% And the 100% Award. The employer was directed to make extended payments after the expiration of the 450 weeks, pursuant to N.J.S.A. 34:15--12(b). The deputy director denied the employer's subsequent motion to set aside the award and findings he had made.

The employer then appealed to the County Court from both the increased permanent disability judgment and the order denying its motion to set the judgment aside as contrary to law and fact. The single issue raised on the appeal was whether, under the circumstances, the employer could, as a matter of law, be required to make payments from and after the expiration of the 450 weeks. The parties entered into the consent order above mentioned, stipulating the facts and dispensing with the necessity of filing a transcript of the testimony because it 'would serve no useful purpose.' It was stipulated, among other things, that the estimates of all doctors at the Division hearings as to permanent disability could not be separated and determined as to each accident but only as to the two combined. The employer's contention was that the One Per Cent Fund, sometimes called the Second Injury Fund, N.J.S.A. 34:15--94 through 95.2, was liable for all compensation payments beyond the 450-week period.

The County Court affirmed the determination of the Workmen's Compensation Division that the employer was liable for the excess payments, and dismissed the appeal. The county judge held that the applicability of N.J.S.A. 34:15--95 depended upon the happening of successive accidents which Severally caused permanent partial disability, but which in conjunction resulted in total permanent disability. Since the medical experts were unable to distinguish, for purposes of compensation, the extent of the injuries attributable to each accident 'severally,' there was no other course that logically could be followed but to treat the two accidents as one.

The employer appealed the County Court judgment to this court. In the course of the oral argument we inquired why a brief Amicus curiae had not been filed on behalf of the One Per Cent Fund because of its obvious interest in the appeal. Following the oral argument, we addressed a letter to the Attorney General's office requesting that the Fund file such a brief, stating that we were particularly interested in the views of the Fund on a number of questions, the first of which was: Did the accident of August 23, 1952 result in partial permanent injury?

Subsequent to our request, the Attorney General moved as Amicus curiae for an order remanding the matter to the Workmen's Compensation Division for further proceedings, to determine whether petitioner had presented a claim cognizable under the One Per Cent Fund Act. The purpose of the motion was to give the Division an opportunity to rule on petitioner's eligibility for benefits from the Fund. The motion was opposed by both the employer and petitioner. We filed a Per curiam opinion in which we observed that we could not, on the basis of the record before us, 'determine what percentage of the total disability is allocable to each accident, and how much might be deemed overage because of the combination of injuries,' and further stating that 'We are not at all certain that the remand will result in a precise allocation of the disability.' We thereupon granted the Attorney General's motion and remanded the matter to the Division for determination as to whether the Fund was liable 'in whole or in part for compensation * * * beyond 450 weeks.' We retained jurisdiction of the appeal until the coming in of the supplemental record.

The parties and the One Per Cent Fund appeared by counsel before Deputy Director (now Judge of Compensation) Kaltz. No further medical testimony was offered to show that the August 23, 1952 accident caused permanent disability or that any percentage of permanent disability could properly be allocated to it. Counsel for the parties chose to rely on such testimony by medical experts as had already been given at the original hearing and the hearing on the petitions for increased disability. The position of the Attorney General was that since no permanent disability could be allocated to the first accident, the One Per Cent Fund was not liable for payments beyond 450 weeks.

At the close of the hearing on remand, Judge Kaltz observed that at the time of the hearing before him for increased liability, he had considered petitioner's eligibility for benefits under the One Per Cent Fund Act; further, that that very issue had been raised before him and been determined when the employer applied for reconsideration of his findings. Judge Kaltz specifically held, on the basis of the testimony adduced, the exhibits offered, and the arguments advanced, that the disabilities flowing from each of the two accidents could not be allocated, and that the One Per Cent Fund was not liable in whole or in part for compensation to petitioner beyond the 450-week period.

The transcript of the hearing on remand was then filed. The Fund, by the Attorney General, filed a brief in support of the County Court judgment and Judge Kaltz' determination. The employer and petitioner have filed no supplemental briefs. All have agreed that this court determine the matter without further argument, on the basis of the original briefs and the brief of the One Per Cent Fund.

The employer admits that none of the reported cases dealing with the One Per Cent Fund involve a factual setting such as is here presented. The briefs of petitioner and the Fund...