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Toohey v. Gorman

Decided: April 25, 1940.


On appeal from a judgment of the Supreme Court, whose opinion is reported in 123 N.J.L. 235.

For the appellant, William J. Egan, assistant attorney general (Stephen J. Lorenz, of counsel).

For the respondent, Miner-Edgar Chemical Corporation, Kalisch & Kalisch (Isidor Kalisch, of counsel).


The opinion of the court was delivered by

HEHER, J. The injured employe suffered a vertical fracture of his right pivot hip bone by accident arising out of and in the course of his employment. Due to a pre-existing physical ailment known as Paget's disease, all efforts at bone union have been in vain; and the resultant disability is total in character and permanent in quality, for which the employer has made compensation for a period of 400 weeks, under section 11 (b) of the Workmen's Compensation act of 1911, as amended by chapter 135 of the laws of 1928. Pamph. L. 1911, pp. 134, 763; Pamph. L. 1928, p. 281; R.S. 1937, 34:15-12.

In the instant proceeding, the employe seeks "further weekly payments * * * during the period" of disability under the cited section of the Compensation act; and the ultimate question for decision is whether his conceded right to such additional compensation is enforceable against the employer or the fund created by chapter 81 of the laws of 1923, as amended by chapter 55 of the laws of 1936. Pamph. L. 1923, p. 162; Pamph. L. 1936, p. 145; R.S. 1937, 34:15-94, 34:15-95.

In a litigated proceeding in the Compensation Bureau, the employe was awarded compensation based upon a finding of disability to the extent of "seventy-five per cent. of total and permanent." The judgment was affirmed in the Essex Common Pleas and in the Supreme Court. Gorman v. Miner-Edgar Chemical Corp., 9 N.J. Mis. R. 180. In a subsequent proceeding, the employer admitted total and permanent incapacity and consented to "additional compensation to the extent of twenty-five per cent., amounting to twenty-five weeks." A determination was entered accordingly. Thereafter, the deputy commissioner, on the employer's motion,

made an order modifying that determination so as to read: "I, therefore, find and determine that the disability originally found as seventy-five per cent. of permanent and total disability has now developed into one of permanent and total disability."

The first insistence is that "the two determinations and orders, consented to by the employer, as to total and permanent disability of the petitioner, is [sic] a determination of this controversy on its merits." More specifically, it is maintained that "the 1% Fund Act covers a portion of 400 weeks," and "therefore, unless 'portion' of the 400 weeks is adjudicated payable from the fund no benefits can be derived therefrom because there is no portion of the period of 400 weeks to which the fund can 'attach;'" that "payments for total permanent disability beyond 400 weeks differ from payments as compensation under the schedule, and essentially are the consequence of total permanent compensation;" that "there must be a finding of the 'portion of the period' of 400 weeks attributable to the fund;" that "the employer had that opportunity to apportion disabilities if any in June, 1936, but did not take it and assumed and consented to total liability instead;" and that under the Compensation Act, supra, "payments beyond 400 weeks are automatically the liability of the respondent paying the balance of 400 weeks." The point is not well made.

The determination of the Compensation Bureau in the second proceeding, based as it was upon an accord between the parties and not on the merits, is not res judicata in respect of the quantum of the employer's additional liability under the Compensation act, supra, therein found. Vide R.S. 1937, 34:15-22. It was not an adversary proceeding in which that issue was litigated and determined on the merits; and it is therefore lacking in the element of finality. "The policy of the law is not served by reduced payments to one entitled to its benefits; nor is it advanced by providing compensation to one not within the statutory class. The approval by the bureau of a compromise agreement made with one not so entitled is nugatory; such action is coram non judice."

P. Bronstein & Co., Inc., v. Hoffman, 117 N.J.L. 500, 505. See, also, Streng's Piece Dye ...

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