For the prosecutor, Vincent A. DeBenedetto (George Pellettieri, of counsel).
For the defendant, Henry H. Fryling (Elmer W. Romine, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The sole controversy here is whether prosecutor has sustained the burden of proof of an increase of disability
entitling him to additional compensation under the Workmen's Compensation Act of 1911, as amended. Pamph. L. 1911, pp. 134, 763; Rev. Stat. 1937, 34:15-1, et seq.
Prosecutor indisputably suffered a compensable injury on November 12th, 1931. The defendant employer voluntarily made compensation under the statute for temporary disability, and for permanent incapacity on the basis of five per cent. of total. Thereafter, on November 8th, 1933, the compensation bureau, in a litigated proceeding, determined that, in consequence of an accident arising out of and in the course of his employment, prosecutor sustained "an injury to his spine," which, through the aggravation of a pre-existing spinal arthritis, produced a permanent disability to the extent of fifteen per cent. of total, and awarded additional compensation accordingly. This judgment was affirmed in the Burlington Pleas, and was thereafter satisfied.
On a petition filed under section 21(f) of the Compensation Act, as amended by chapter 279 of the laws of 1931 (Pamph. L. 1931, p. 704; Rev. Stat. 1937, 34:15-27), Deputy Commissioner Stubbs, who sat in the original proceeding, found an injury to the fifth lumbar vertebra, "either in the nature of a slipping or a straining of the anchorage of the vertebra on the sacrum," and an increase of disability to the extent of fifteen per cent. -- a total incapacity of thirty per cent. -- and made an award of additional compensation. The Burlington Pleas reversed the judgment on the ground that the proofs did not establish an after-occurring increase of incapacity. 14 N.J. Mis. R. 459.
Comparing the evidence adduced at the hearings held upon these petitions (we express no opinion as to the propriety of this course under the circumstances), the Common Pleas judge found a similarity of testimony which, in his judgment, negatived an increase of incapacity during the intervening period. He pointed out that the single doctor called by prosecutor on the hearing of the first petition expressed the opinion that his permanent disability was seventy per cent. of total, while the several physicians who testified in his behalf in the instant proceeding gave estimates ranging
between seventy-five per cent. and total; and that, on the first hearing, defendant's physicians testified that prosecutor was under no disability, while on the second two conceded he was then suffering incapacity estimated at from five per cent. to ten per cent. of total. The others persisted in the view that there was no disability at all. As to the testimony of defendant's physicians that disability to the extent of five per cent. or ten per cent. of total had set in between the two hearings, the judge ruled that it "is still within the fifteen per cent. first award as taken against the respondent," and therefore does not afford a sufficient basis for a finding of increased incapacity. He concluded -- erroneously we find -- that, on the evidence thus adduced, it was incumbent upon the commissioner "to have found an increased disability of five per cent. or ten per ...