On appeal from a judgment of the Supreme Court, whose opinion is printed in 15 N.J. Mis. R. 393.
For the appellant, Merritt Lane.
For the respondent, George Pellettieri.
The opinion of the court was delivered by
HEHER, J. This case arose under the Workmen's Compensation act of 1911. Pamph. L., pp. 134, 763. The question for decision is whether the amendment of section 21(f) of that statute, effected by chapter 279 of the laws of 1931 (Pamph. L., p. 704), providing for a review of a formal award within two years from the date of the last payment of compensation to the injured employe, on the ground of increased incapacity, is applicable where the accident happened prior to the adoption of the amendment and the award was entered thereafter.
The accident -- a fall from a scaffold -- occurred on September 16th, 1929. On May 6th, 1931, a "determination and rule for judgment" was entered in the compensation bureau, based upon an agreement between the parties, awarding to the employe seventy-one weeks' compensation for temporary disability, part of which had been paid, and one hundred and sixty-six and two-thirds weeks' compensation for permanent incapacity. A second petition was filed; and the proceedings thereon culminated on March 14th, 1935, in a formal award of additional compensation, based on permanent disability to the extent of fifty per cent. of total. The employer appealed; and judgment of affirmance was entered in the Pleas on August 2d, 1935. This judgment was paid three days thereafter. On October 16th, 1935, the employe presented to the bureau, under section 21(f), as thus amended, the instant petition for compensation for increased disability. The deputy commissioner found, among other things, brain atrophy of at least one-eighth of an inch, and compensation was awarded for total and permanent incapacity. There was an affirmance in the Common Pleas. These
judgments were rested upon the finding of an increase of disability subsequent to the entry of the "formal award." The Supreme Court, on certiorari, affirmed the judgment of the Pleas; and the employer appeals.
The insistence is that, so construed, the amendment is to that extent violative of the provisions of the fourteenth amendment of the Federal Constitution, guaranteeing "due process of law" and the "equal protection of the law," the due process clause of the State Constitution (article I, paragraph 1), and paragraph 1, section X of article I of the Federal Constitution and paragraph 3 of section VII of the State Constitution, disabling the legislature from the passage of laws impairing the obligation of contracts. Ours is essentially an elective and not a compulsory scheme of compensation.
This court, in McLaughlin v. Hahne & Co., 12 N.J. Mis. R. 6; affirmed, 113 N.J.L. 32, ruled that the applicancy of the amendment of 1931, supra, is determined by the "date of the award," and not by the "date of the accident" (see, also, Granata v. D.W. McGee Construction Co., 114 Id. 89); and the specific argument made by appellant is that "the provisions of the statute as it existed at the time of the happening of this accident, and at the time of the cessation of the relationship of master and servant, were parts of the contract," and that, "in determining whether to continue to operate under section II, the employer had the right to take into consideration the provisions of the statute as to review." It is pointed out that, under the statute as it existed prior to this amendment, the petition for increased compensation would not be maintainable under the circumstances here presented; and the contention is that "the changes in section 21(f) by the amendments of 1931 * * * affect the substantive rights of the parties," rather than the time for invoking the remedy, in that under the prior statute the employe could recover compensation only for the disability "as it existed one year after the happening of certain events or, at the most, one year plus the usual time of bringing to hearing," while, by virtue of the amendment, the employe was vested with the
right to recover compensation for disability "as it existed two years after the happening of certain events plus the usual time of bringing to hearing," and, furthermore, at least one of the "events from which the time is to be computed was changed for, prior to the amendments of 1931, the statute as it had been construed in Herbert v. Newark Hardware Co., 107 N.J.L. 24; affirmed, 109 Id. 266, and Granata v. D.W. McGee Construction Co., supra, did not permit a payment on account of a judgment to be considered as a voluntary payment from which to date the running of the one-year limitation read into section 21(f) under the authority of Lusczy v. Seaboard By-Products Co., 101 Id. 170." These are described as "substantial changes in the substantive rights of the parties;" and it is said that if the amendment be applied to the case in hand, there will result not only a change of remedy, but an impairment of the "contract obligation * * * after the contractual relationship of employer and employe has ceased and after the employer has been deprived of any opportunity of accepting or rejecting the changed contract."
While the question was raised in Streng's Piece Dye Works, Inc., v. Galasso, 118 N.J.L. 257, its resolution was not necessary to ...