For the prosecutor, Nathan Rabinowitz (Isadore Rabinowitz, of counsel).
For the respondent, Merritt Lane.
Before Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. The primary question at issue is whether a "final judgment" awarding compensation to an injured employe under the Workmen's Compensation act of 1911 (Pamph. L., p. 134), as amended, where the issue was litigated and determined "on its merits," without in anywise "involving the elements of agreement," is a "formal award" within the intendment of paragraph 21 (f), section II of the act, as amended by chapter 279 of the laws of 1931 (Pamph. L., p. 704), and therefore reviewable within two years from the date when the injured employe last received a payment of compensation on the ground that his incapacity "has subsequently increased." A secondary question is whether there has been in point of fact a subsequent increase of disability. The employe sued out a writ of certiorari; and, pursuant to its mandate, the record of the proceedings below has been returned for review.
The chronology and a resume of the pertinent facts and findings follow:
On February 14th, 1933, prosecutor suffered injury by an accident which arose out of and in the course of his employment. His petition for compensation under the Compensation act, supra, came on for hearing on October 23d, 1933; and, on October 30th, 1933, the deputy commissioner made his findings. He resolved the basic issues in favor of prosecutor, and found the permanent disability to be "ten per cent. loss of use of the right hand." Neither side appealed, and the judgment was satisfied in due course. On February 10th, 1934, the prosecutor, alleging increased disability, filed a petition for additional compensation; and, on October 16th, 1934, after hearings held on March 19th and April 16th, 1934, the deputy commissioner (he also heard the original petition) filed a determination of facts and rule for judgment dated September 24th, 1934. He found that there had been a "progressive increase" in disability since the determination and judgment entered on the original petition, and that the disablement then was thirty per cent. of the normal use and function of the hand. Compensation was awarded on the basis of a twenty per cent. increase in incapacity.
The employer appealed; and the Passaic Common Pleas reversed the judgment, holding that paragraph 21 (f) of the Compensation act was inapplicable where the issue of the right to compensation "was fully adjudicated on the merits after a litigated hearing with testimony adduced on both sides," and was followed by payment of the judgment, as distinguished from "a mere agreement of compromise formally approved by the bureau" -- citing Herbert v. Newark Hardware Co., 107 N.J.L. 24; affirmed, 109 Id. 266, and Federated Metals Co. v. Boyko, 11 N.J. Mis. R. 807; affirmed, 112 N.J.L. 87. The judge found a substantial distinction between "final judgments" and "formal awards." He also concluded that the finding of increased disability was contrary to the weight of the evidence.
First: The initial point of inquiry is the legislative purpose embodied in chapter 279 of the laws of 1931, supra,
amending paragraph 21 (f), section II, of the Compensation act. If there be any apparent obscurity in the language employed, the true legislative sense of the words used will be readily resolved by a consideration of the state of the law at the time of the enactment of the amendments, and its historical background. The basic statute of 1911, supra, invested the Courts of Common Pleas with original jurisdiction to enforce the rights thereby conferred. It provided (paragraph 20, section II) for a determination "in a summary manner" of "the merits of the controversy," and for the entry of judgment upon the judge's "determination * * * filed in writing with the clerk * * *." The second unnumbered clause of paragraph 21, section II, provided that "an agreement or award of compensation may be modified at any time by a subsequent agreement, or at any ...