For the petitioner-prosecutor, David Cohn.
For the respondent-defendant, Kellogg & Chance (R. Robinson Chance.)
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. The case arises under the Workmen's Compensation act. The workman was injured August 2d, 1934. He filed his petition with the bureau and the employer answered admitting employment, the accident and, in general, the facts constituting liability. The parties apparently came to an oral understanding as to the extent of temporary and permanent disability. Nevertheless there was a formal hearing and the deputy commissioner, after the hearing, made a formal award along the same lines. The hearing was held on the eighteenth, and the formal award was made on the 30th of March, 1935. On June 29th, 1935, the workman filed a supplemental petition which alleged that his injuries were more severe than he had previously been aware. The employer answered denying increased disability and moved, on November 12th, 1935, that the case be dismissed upon the ground that it had been litigated. The motion was denied. A protracted hearing, occupying three days, did, however, result in a judgment of dismissal. Upon appeal, the Passaic County Common Pleas affirmed that judgment.
The substance of prosecutor's argument may be stated thus: (1) the deputy commissioner was wrong in holding that the only point to be determined was whether there had been an increase in permanent disability; (2) the deputy commissioner erred in holding that the burden of proof was upon the claimant; (3) the weight of the testimony does not support the factual findings.
Although the determination made on the first petition was in complete agreement with the plan proposed by the parties,
it was, we find, an independent determination of the issues upon the merits after hearing in the customary mode and therefore was invested with the conclusive character of a final judgment within the rule stated in Streng's Piece Dye Works, Inc., v. Galasso, 118 N.J.L. 257. It is not to be classed as an agreement without a determination or as an award on an agreed amount such as was the subject of the holding in Ruoff v. Blasi, 117 Id. 47; affirmed, 118 Id. 314. Some of the facts were stipulated. It was stipulated that in the opinion of Dr. Blumberg, a neurologist who had made an impartial examination of the workman on behalf of the state, the workman showed no neurological condition due to the accident and that a five per centum estimate of permanent disability was fair; and the doctor's report was marked in evidence by stipulation. The fact that the workman had met with an accident arising out of and in the course of his employment, the date thereof, the weekly wage, the amount of temporary disability already paid, the duration of treatment by the attending physician -- all of these were stipulated facts. But the presentation of facts by stipulation is practiced in all courts, appellate as well as trial. The workman was sworn and questioned as to his physical condition. His medical expert testified at length of the examinations that he had made and the opinions he had formed; that there had been a forty per centum disability, reduced, however, at the time of the hearing, to a five per centum permanent disability in the man's physical condition, brought up to ten per centum by a traumatic neurosis. The respondent's physician, being sworn, testified that he found no existing disability, that there was no evidence of a traumatic neurosis, and that the man appeared like a normal man of forty-five years of age (his age was forty-six); and the witness was cross-examined in detail.
The determination and rule for judgment recites the stipulated facts and the proofs and finds, upon "the stipulations entered into and the testimony adduced," "that the petitioner met with an accident arising out of and in the course of his employment on August 2d, 1934, and that he was disabled
and unable to work for a period of nineteen (19) weeks thereafter. Since eighteen (18) weeks of this allowance have already been paid, there remains a balance of one week still due for temporary disability. I further find that the petitioner, by virtue of his accident, has suffered a permanent disability equivalent to five (5%) per cent. of total permanent disability." The acceptance by the deputy commissioner of one physician's testimony that there was an actual five per cent. impairment and of the other physician's testimony that there was no traumatic neurosis would lead logically to such a conclusion. Unless it is to be said that the parties must create a dispute as to the facts where no dispute exists, or that, facts being conceded to be facts, the parties must nevertheless proceed to prove them in their entirety by formal testimony, or that the deputy commissioner, being convinced by the proofs that the allowances agreed to by the parties are just and sound, must nevertheless arrive at some other determination in order to comply with the Workmen's Compensation act, we think that the force of the March, 1935, ...