For the petitioner-defendant, Samuel E. Barison (Frederick E. Riethmuller, of counsel).
For the prosecutor, John L. Ridley.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The writ of certiorari in this case was allowed to review a judgment of the Hudson County Pleas, which affirmed the determination in the Workmen's Compensation Bureau.
The petitioner, Lukis, who in 1932 was found to be suffering permanent total disability, applied to the bureau pursuant to the statute (R.S. 34:15-12, sub-section B) for further compensation, which after formal hearing was awarded him. The bureau directed that such compensation be paid each week starting from the date of last payment under its previous judgment, the term of which was 400 weeks, and continue during the lifetime of the petitioner or until it appeared that the petitioner might be "rehabilitated" in accordance with the legislative intention expressed in the statute, supra.
The facts are brief and undisputed. Compensation was paid under the order or judgment of the bureau of February 3d, 1932, and was continued up to the date of the last payment, December 2d, 1938, after which the petitioner submitted himself for examination to the New Jersey Rehabilitation Commission. That the petitioner is still totally and permanently disabled is not disputed. He suffered and still suffers from pulmonary tuberculosis of both lungs "with cavitation." The employer argues that no additional compensation should be allowed because the petitioner failed to submit himself "to the Rehabilitation Commission for physical and vocational rehabilitation" before the expiration of the 400 weeks of permanent disability payments, i.e., prior to the date of the last payment, under the judgment of February 3d, 1932, and that such failure bars further compensation, relying upon the statute -- R.S. 34:15-12 (B). That part of the statute (and we quote only the pertinent sentence) reads as follows:
"* * * This compensation shall be paid for a period of four hundred weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the Rehabilitation Commission, and can show that because of such disability it is impossible for him to obtain wages or earnings equal to those earned at the time of the accident * * *." (Italics supplied.)
Relying on this statutory language, the prosecutor contends that unless the petitioner, on his own account, submitted himself to physical or educational rehabilitation he automatically is disqualified from receiving any further compensation. We discern no such legislative ultimatum or intention in the statute. In cases of permanent total disability it is undoubtedly the policy of the state as expressed in the Compensation law that a disabled workman should be rehabilitated if that can be accomplished. And in cases where physical or educational rehabilitation is ordered by the commission, and there is a rejection of same or a conscious failure to accept the benefits of such attempted rehabilitation, compensation, under those circumstances, shall cease when the 400 week period shall have expired. This part of the statute is directed at malingerers and those generally who refuse to be helped physically or educationally to partial or complete rehabilitation so that they may again become wage earners. But compensation in the case of those suffering permanent total disability does not cease under this section of the statute after the expiration of
the 400 week period unless it appears that the disabled person has rejected the rehabilitation that had ...