Decided: October 3, 1939.
JOHN J. TOOHEY, JR., COMMISSIONER, ETC., PROSECUTOR,
FRED GORMAN, PETITIONER BELOW; MINER EDGAR CHEMICAL CORPORATION, RESPONDENT BELOW
For the prosecutor, Stephen J. Lorenz and William J. Egan, assistant attorney-general.
For the Miner Edgar Chemical Corporation, Isidor Kalisch.
Before Justice Parker, Bodine and Perskie.
[123 NJL Page 236]
Gorman, the petitioner below, is totally and permanently disabled as a result of two causes, an accident, and a preexisting disease. There was an award for partial disability of three hundred and seventy-five weeks, and on a later petition a second award adjudging for total disability of twenty-five weeks more. Both have been paid in full.
A third application was made, based on the act of 1923, chapter 49, as amended by chapter 135 of 1928, for further compensation payments to continue indefinitely. As amended, the petition joined the employer and the Commissioner of Labor as respondents; and this raised the question whether these further payments should come from the employer or from the one per cent. fund. The deputy commissioner held that the accident was the sole cause of the permanent disability, and made a further award against the employer. On appeal to the Common Pleas, this finding of fact was reversed and the court held that "there was a demonstrable disability pre-existing and separate from that caused by the accident." Based on this finding there was a judgment that the employer had fully met -- in fact, more than met -- its legal obligation, and that further payments be made out of the one per cent. fund, final judgment to be entered in favor of the employer. The present writ is to review that judgment of the Pleas.
The case is submitted on briefs; and we do not observe that the finding of fact by the Pleas is seriously questioned. In any event, we think that it is sound. And as to the correctness of the finding in point of law, the decision of the Court of Errors and Appeals in Richardson v. Essex, &c., Co., 119 N.J.L. 47, seems controlling.
The writ of certiorari is therefore dismissed, but without costs.