Watts v. City Of Newark.

• Decision Date: 01 July 1947
• Citation: 54 A.2d 622
• Parties: WATTS v. CITY OF NEWARK.
• Court: New Jersey Court of Common Pleas

54 A.2d 622

WATTS

v.CITY OF NEWARK.

Court of Common Pleas of New Jersey, Essex County.

July 1, 1947.

On appeal from Workmen's Compensation Bureau.

Proceeding under the Worken's Compensation Act by John Watts, claimant, opposed by the City of Newark. From an award of the Compensation Bureau of 100 per cent disability after previous award of original disability of 25 per cent, the city appeals.

Affirmed.

Thomas L. Parsonnet and Michael Breitkopf, both of Newark, for appellant.

Joseph A. Fuerstman, of Newark, for appellee.

HARTSHORNE, Judge.

This appeal lies from a determination in the Compensation Bureau, awarding the employee, John Watts, petitioner-appellee, a subsequently increased disability, as provided for by the statute, N.J.S.A. 34:15-12, totaling 100%, after a previous award of original disability of 25%. The prime issues are (1) of law-as to whether the record upon which this appeal is based, includes the entire transcript of evidence taken by the Bureau, not on the hearing as to increased disability, but on the original hearing, and (2) whether, in the light of the evidence lawfully before this court-including the above original hearing evidence, or not, as this court may determine-the petitioner now has or has not, a 100% compensable disability. As to the latter question, the issue more specifically is, whether petitioner's compensable disabilities have now, in addition to their objective effects, resulted also in a severe psychoneurosis and conversion hysteria, as claimed by him, or whether he is a pure malingerer, as claimed by respondent.

Since the decision of the second question, to some extent, depends upon the determination of the first, we proceed to the consideration of this question-whether the evidence, upon which the original award was made, is a part of the evidence to be considered on the hearing as to increased disability, both originally and on appeal. On this point, the research of industrious counsel has revealed no precedent.

In the first place, the statute requires this appeal to be ‘based exclusively on the transcript of the record and testimony.’ R.S. 34:15-66, N.J.S.A. The statute, after previously providing at length for the procedure upon the original compensation petition, makes provision, by an entirely separate subsequent section, R.S. 34:15-27, N.J.S.A., for a proceeding unknown to the common law, to ascertain whether the disability previously adjudicated ‘has subsequently increased * * * [or] has diminished.’ It further provides a different statute of limitations upon the bringing of these proceedings for a subsequently diminished disability than for those as to a subsequently increased disability. These all point to the legislative intent that these novel proceedings, instituted by entirely separate petitions for increased or diminished disability, are separate from the proceedings culminating in the original basic award. And such has apparently been the viewpoint of our highest court, which has said, ‘A petition for compensation for augmented incapacity, while predicated on the original judgment, initiates what is essentially a new proceeding based on a new factual situation.’ Drake v. C. V. Hill & Co., Err. & App., 117 N.J.L. 290, 187 A. 637, 638. It is furthermore clear that an original award of compensation, unappealed from, is res judicata of the rights of the parties as of that time. The determination and rule for judgment entered by the Bureau thereon, states the adjudicated res. Such determination and judgment has resolved the contradictions normally appearing in the underlying testimony, and can alone be looked to thereafter as stating the true facts at that time. As stated by our upper courts, ‘The formal determination or final judgment of the commissioner is, by the statute, the repository of his ultimate findings.’ [Tucker v. Frank J. Beltramo, 117 N.J.L. 72, 186 A. 821, 827, affirmed 118 N.J.L. 301, 192 A. 62], as of the time of the hearing. The determination and judgment entered thereon constitutes the final findings of facts and the law of the case, just as does a judgment at common law.

The novel proceeding for subsequently increased or diminished disability must, of course, be based thereon. It is from this fixed base that the calculation must be made as to whether subsequently there has been an increase or decrease of disability. This increase or decrease cannot be determined by reference to the normally contradictory testimony taken at the original hearing. To do so would both result in confusion, and would in fact result in letting the tribunal now passing on a subsequent increase or decrease, redetermine the original disability. This would be contrary to the settled principle that the determination of such original disability is final on that point, if not appealed from, as seen above. Hence, the evidence taken on the original award is not ipso facto part of...