On appeal from the Supreme Court, whose opinion is reported in 118 N.J.L. 121; 191 A. 760.
For the appellants, Kalisch & Kalisch (Isidor Kalisch, of counsel).
For the respondent, David Roskein (John A. Laird, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. It presents the problem of the proper construction and application of paragraph 2 of chapter 81, Pamph. L. 1923, p. 162,
as amended by chapter 55, Pamph. L. 1936, p. 145, both of which acts were passed to assist in carrying out the purposes of chapter 74, Pamph. L. 1919, p. 138.
Paragraph 3 of the act of 1936, supra, as lastly amended provides as follows:
"2. The sums collected under the terms of this act shall constitute a fund out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of paragraph eleven (b) of the Workmen's Compensation act shall be made to persons totally disabled, as a result of experiencing a permanent injury under conditions entitling such persons to compensation therefor, when such person had been previously permanently and partially disabled from some other cause. In such cases the compensation payable from said fund shall cover that portion of the period for which the employer is not legally responsible due to the permanent and partial disability suffered or possessed by the employe at the time that the employe sustained the injury as a result of which the employe became totally and permanently disabled. Payment to such totally disabled employes shall be made from said fund by the State Treasurer upon warrants of the Commissioner of Labor. * * *"
The facts which give rise to the problem are not in dispute. They are brief, and are as follows: On September 8th, 1900, respondent, who was the petitioner below, lost his right leg in a railroad accident. More specifically, his right leg was amputated about two and one-half inches below the knee. He was, however, able to, and did in fact, with the aid of an artificial limb, continue in his occupation as a trunkmaker. While so employed by appellant, who was the respondent below, he was, on September 26th, 1933, directed to post a sign on the premises. While walking upon a flight of stairs in appellant's premises, in order to carry out instructions, he stepped upon a screw on the stairs which caused him to slip and fall. As a result of that accident his left leg was injured. The injuries did not respond to medical treatment. They necessitated, and respondent submitted to, an operation for
the removal of the semi-lunar cartilage of the left knee. It appears that if the right leg had been normal the resultant injuries to the left leg would have approximated a permanent disability of a thirty per cent. loss of that member of his body. But, due to the impossibility of co-ordinated function with the right leg, pain, &c., it was found that the permanent disability resulting from the second accident approximated a fifty per cent. loss of the left leg.
Upon this determination of the facts, the deputy commissioner, in the workmen's compensation bureau, entered a rule for judgment based upon the allowance of temporary disability from October 26th, 1933, to November 7th, 1934, at $10 a week, which sum was paid, and upon the further allowance of permanent total disability amounting to fifty per cent. loss of respondent's left leg, i.e., compensation for eighty-seven and one-half weeks at $10 a week. He refused to find that respondent had suffered a total disability because of the lack of proof of the loss of two ...