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Smith v. Klemm

Decided: July 27, 1937.


On certiorari.

For the prosecutor-appellant, Herbert C. Dolan.

For the respondent-appellee, Henry Grossman (Isidor Kalisch, on the brief).

Before Brogan, Chief Justice, and Justices Case and Perskie.


[118 NJL Page 472] BROGAN, CHIEF JUSTICE. This is a workmen's compensation case and is before us on a writ of certiorari, the employe appearing as prosecutor. That this case presents a most

unusual situation will be clear when the following pertinent facts, as they appear in the state of the case, are read. We find a claim petition for compensation without date or number or any indication to show just when it was filed in the workmen's compensation bureau.

We gather from the petition that the employe seeks increased compensation; that the accident happened on October 10th, 1930; that the injuries arose out of and in the course of the employment, are permanent in character, and alleged to consist of a displaced fracture of the right hip and pelvis, shortening of the right leg, disability to the back, as well as curvature of the spine. Petitioner asserts that he is totally and permanently disabled. His weekly wages were $50 and the employer has, since the accident, paid the employe $2,497.14 by agreement, not by award of the bureau.

The respondent employer filed an answer which was sworn to on March 11th, 1933. Many of the questions on the printed form for making answer carry no reply; others convey no information. As an example of the latter, we find, "No. 22. Give your understanding of any permanent injury which has resulted, either amputation or loss of usefulness of any member or impairment of any physical organ. Explain fully." The employer's reply is, "No knowledge." This answer is made twenty-eight months after the accident. In reply to the twenty-ninth question, the employer answers that he has paid $2,497.14 to the employe as compensation, not including medical aid. In reply to a later question, the employer answers, "Petitioner has already been paid compensation for twenty per cent. of total permanent disability and respondent contends that he has been liberally and fully compensated for his disability resulting from the alleged accident."

The next page in the record reveals an order dismissing this petition which recites that a formal petition was filed, praying for compensation for increased disability and an answer was filed by the respondent denying that there is any increase in the disability, and a finding that the disability of the petitioner has not increased beyond the amount paid,

namely, twenty per cent. of total. Thereupon the deputy commissioner of labor, on May 23d, 1933, signed the order dismissing the petition.

We turn to the record upon which this order of dismissal was predicated and find no testimony from any witness as to what the injuries and the resultant disabilities were. We find that counsel for the employer stated that the petitioner suffered an accident on October 10th, 1930; that compensation for temporary disability had been paid in full and that, in addition, respondent had paid petitioner for partial, permanent disability in the sum of twenty-per cent. of total. Then counsel said this was an application for compensation for increased disability over and above that sum and that the employer contended the petitioner had been fully compensated and that the petition should be dismissed. Thereupon a Doctor Markens, presumably a witness for the petitioner (although there is nothing to indicate whether this medical witness or the one who followed him testified for the petitioner or the employer), was sworn. This witness said that he examined the petitioner on July 6th, 1932, and that at that time he "felt that the disability was twenty per cent. of total;" that he examined him twice since that time and his findings were almost identical with those of his first examination and that in his judgment the petitioner had no increased disability.

A second medical witness, a Doctor Robbins, said he had examined the petitioner "once in January and once in May." The year is not stated. He then says, "my findings were as those of Doctor Marken's. I agree that there is a definite, permanent disability of twenty per cent." Thereupon the petitioner was called to the stand by his own counsel, who addressed the petitioner in these words: "Mr. Smith, your petition is being dismissed at the present time and you cannot apply to this court to reopen this case and in consideration thereof you are going to receive payment from the company in the amount of $850 and out of ...

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