For the respondent, Ambrose J. Peraino (Vincent M. Rotolo, of counsel).
For the prosecutor, Henry H. Fryling (Elmer W. Romine, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The writ of certiorari in this workmen's compensation case seeks to review the denial or refusal of the workmen's compensation bureau to dismiss the employe's claim for increased disability compensation. Deslauriers Column Mould Co. v. Jackson, 3 N.J. Mis. R. 258; 127 A. 798; McLaughlin v. Hahne & Co., 12 N.J. Mis. R. 6; 169 A. 542.
It is strongly urged that the denial or refusal to dismiss the petition should be reviewed and set aside, because;
(a) There was a full and complete settlement of the compensation claims to Charles Anderson, on November 29th, 1930.
(b) The petition for increased disability compensation was filed more than two years after the occurrence of the alleged accident and the payment of compensation.
The first question, therefore, requiring decision is whether the determination by the bureau, on November 29th, 1930, was a final adjudication of the issues, on the merits, raised by the pleadings of the respective parties or whether the determination and the commutation were based on a mere agreement of compromise? Herbert v. Newark Hardware Co., 107 N.J.L. 24; 151 A. 502; affirmed, 109 N.J.L. 266; 160 A. 492; Federated Metals Corp. v. Boyko, 11 N.J. Mis. R. 807; 168 A. 672; affirmed, 112 N.J.L. 87; 170 A. 56; Federal Leather Co. v. DeRensis, 113 N.J.L. 235; 174 A. 163.
Ordinarily the answer to the question should be simple,
viz.: what actually did take place at the hearing of November 29th, 1930? But, unfortunately the state of case does not contain a transcript or minutes of the testimony or procedure of this hearing. We are told by prosecutor, and it is not controverted, that the stenographer who took the testimony could not find his original notes. It therefore becomes necessary to detail the facts as they are disclosed to us in the state of case as submitted. Before we direct our attention to facts relating to the hearing, "at the risk of prolixity, but in the interest of clarity," it is necessary to also detail all other pertinent facts. They are substantially as follows:
Charles Anderson filed a claim for compensation against his employer, the prosecutor of this writ, on April 8th, 1930. This petition discloses that on July 1st, 1929, while employed by the prosecutor as a switchboard operator, at its substation at Hackensack, New Jersey, twenty-six thousand volts of electricity passed through him, "burning his head, eyes, ears, face, arms, legs, back, groin, and chest, and causing him to fall twelve feet to the ground." Prosecutor, in its answer, claimed that the accident happened "while stretching, after a nap, his hands came in contact with a live bushing." Notwithstanding the claim, as aforesaid, prosecutor, under its thirty-ninth answer, in explanation of its denial that the accident was compensable, made this statement:
"Respondent avers that it has adequately paid petitioner for all the temporary compensation that is due. Respondent further avers that it is presently compensating petitioner for forty per cent. of total and permanent disability, subject to revision upon re-examination at expiration of payments. Respondent reserves the right to move to strike out the petition at the time of trial on the ground that the workmen's compensation bureau has no jurisdiction in that there was no dispute prior to or at the time of filing the petition."
Clearly that answer does not square itself with the suggestion of the prosecutor below and its arguments here that it denied liability. There is, obviously, no substance to that contention. A memorandum of Deputy Commissioner Stahl, attached to the return and appearing on page 21 of the state of case, discloses that between June 4th, 1930, and November
13th, 1930, there were six scheduled hearings, which were either adjourned or at which no appearances were made. Under date of October 1st, 1930, appears the following: "Am advised that this matter will probably be settled." Under date of November 11th, 1930, appears the following: "Hearing at Newark -- by stipulation. Award. Closed." Again the memorandum of the deputy commissioner appearing on pages 22 and 23 of the ...