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Herbert v. Newark Hardware and Plumbing Supply Co.

Decided: September 11, 1930.

GEORGE HERBERT, PETITIONER-DEFENDANT,
v.
NEWARK HARDWARE AND PLUMBING SUPPLY COMPANY, RESPONDENT-PROSECUTOR



On certiorari to judgment of Essex Common Pleas, affirming award in a workmen's compensation case.

For the prosecutor, Joseph C. Paul.

For the defendant, Samuel Press.

Before Justices Parker, Campbell and Bodine.

Parker

The opinion of the court was delivered by

PARKER, J. The controlling question in this case, which must be resolved in favor of the petitioner below if the other questions raised are even to be considered, is whether after a year has expired from the date of the injury without any voluntary payment of compensation by the employer or any agreement to pay such compensation, and within that year there was a petition filed pursuant to the statute, trial before the commissioner, appeal to the Common Pleas and affirmance in that court, review by certiorari in this court and judgment of affirmance here after the year had expired (Herbert v. Newark Hardware, &c., Co., 6 N.J. Mis. R. 647; 142 A. 343) and payment of the judgment as affirmed, the statute permits the whole matter to be reopened and readjudicated on the theory of increased disability.

The accident occurred on July 13th, 1927; the petition was sworn to on August 4th, and award made September 30th, 1927. After appeal to the Common Pleas and affirmance by that court, the case came here on certiorari, was argued at May term, 1928, judgment of affirmance was entered about August 1st, 1928, and paid on or about October 15th, 1928. On November 7th, 1928, petitioner filed an "amended petition" setting up further disability altogether different from the hernia claimed in the original petition and of a much more serious character, claiming it had not been discovered until that time. We need not stop to consider whether the claim was supported by the evidence. The commissioner properly dismissed the "amended petition" as in effect a new petition (see Benjamin & Johnes v. Brabban, 90 N.J.L. 355), but entertained and granted an application to reopen the original proceeding on the theory that such application was made "within one year from the date of the last payment of compensation as provided in the [supplement to the ] Workmen's Compensation act, Pamph. L. 1918, ch. 149, p. 431, P5." The award based on this ruling was affirmed in the Common Pleas, and is now before us.

We conclude that there was error in entertaining the second application, as we are of opinion that it came too late.

As the matter is important, it is worth while to note the history of our legislation on this phase of the Compensation act, and the decisions applying and construing it.

In the original act, the second clause of paragraph 21 (Pamph. L. 1911, p. 143) reads as follows:

"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." Later, the legislature, not satisfied with the clause that we have italicized, eliminated it. Pamph. L. 1919, p. 211, P21, clause (f). As modified, ...


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