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Kolesnik v. Varnish

Decided: March 15, 1938.

MICHAEL KOLESNIK, PROSECUTOR,
v.
IRVINGTON VARNISH AND INSULATOR CO., DEFENDANT



On certiorari.

For the prosecutor, David Roskein (John A. Laird, of counsel).

For the defendant, Kellogg & Chance (R. Robinson Chance, of counsel).

Before Justices Bodine, Heher and Perskie.

Heher

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, as amended.

On July 24th, 1933, prosecutor suffered injury by accident arising out of and in the course of his employment with defendant; and on June 11th, 1936, a "determination and rule for judgment" was entered in the compensation bureau, whereby he was awarded compensation on the basis of five per cent. of total permanent disability.

The petition averred the consequent permanent injuries thus: "Back, leg, hip sacroiliac sprain, injury to sciatic nerve, nerve impairment and other complications." The answer made what might well be termed a guarded admission of permanent incapacity; and, when the matter came on for hearing, the referee was informed that a settlement had been negotiated, providing, among other things, for compensation on the basis of five per cent. of total permanent disability. This "settlement" was termed by defendant a "final closeout," barring recovery for disability to arise thereafter; and, when prosecutor himself refused consent to this proposed adjustment of the controversy, the referee proceeded to an immediate hearing with the witnesses on hand.

He found a traumatic aggravation of "a generalized arthritis due to focal infection;" and he incorporated in the judgment -- entirely without warrant in law, as will presently appear -- a finding that, while prosecutor's "condition will most likely be progressive in character, * * * the progressiveness will not be due to trauma," and a provision designed to impart to the adjudication the quality of "a final award disposing of the case for all time as far as the trauma alleged * * * is concerned."

On December 7th, 1935, the instant petition was filed.

While not in terms one for increased disability, it was so considered; and Deputy Commissioner Stahl, sitting in the case for the first time, found progressive traumatic sciatica, accompanied by "considerable atrophy in the left thigh," consequent upon the original injury, and a subsequent twenty per cent. increase of permanent incapacity. Judgment was entered accordingly; and, on defendant's appeal, the Essex Common Pleas reversed on the ground that prosecutor had not sustained the burden of proof of "an increase in incapacity subsequent to the first award."

It is the insistence of the employer, in limine, that the judgment entered on the second petition is coram non judice, in that (1) the petition is not in terms one for increased incapacity under paragraph 21 (f), section II, of the Workmen's Compensation act, as amended by chapter 279 of the laws of 1931 (Pamph. L., p. 704), and the award therefore constitutes a deprivation of property without due process of law, in contravention of the fourteenth amendment of the federal constitution, and (2) the judgment on the original ...


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