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Rotino v. J.P. Scanlon Inc.

Decided: August 28, 1940.

ROSARIO ROTINO, PROSECUTOR,
v.
J.P. SCANLON, INC., DEFENDANT



On writ of certiorari.

For the prosecutor, Nathan Baker and Edward J. O'Brien.

For the defendant, Charles J. Gormley and Wall, Haight, Carey & Hartpence.

Before Justices Case, Donges and Heher.

Case

The opinion of the court was delivered by

CASE, J. We have for review a judgment in the Hudson County Court of Common Pleas which affirmed the dismissal by the Workmen's Compensation Bureau of prosecutor's petition for a larger compensation because of alleged increased permanent disability. The question is of fact as to whether there is an increase in permanent disability chargeable to the accident upon which the original award was made. The

bureau decided in the negative; the finding was that any increase that there has been is due to the natural progress of a pre-existing condition and that the workman has been fully compensated for any disability resulting from the accident. So, too, the Pleas on appeal.

We have, Anderson v. Federal Shipbuilding and Dry Dock Co., 118 N.J.L. 55; Grotsky v. Charles Grotsky, Inc., 121 Id. 461, examined the testimony. There is proof both ways, but we conclude that it does not weigh down in favor of the prosecutor. Upon a petition to establish and obtain amended allowance for an increase or a decrease in disability the burden is upon him who asserts the change. Pasquale v. Clyde Piece Dye Works, 120 Id. 557. Cf. Tucker v. Frank J. Beltramo, Inc., 117 Id. 72 (at p. 80); affirmed, 118 Id. 301; also the Supreme Court opinion in Cirillo v. United Engineers and Constructors, Inc., 120 Id. 225 (reversed on other grounds, 121 Id. 511). The testimony of increase or of decrease must be predicated upon the condition and causes determined at the original hearing. Cirillo v. United Engineers and Constructors, Inc., 121 Id. 511. The rule is particularly pertinent here for the reason that, against petitioner's contention on the original claim, claimant did, prior to the accident, suffer from earlier disease or injury disassociated from the employment, which was chargeable with a percentage of the disability. A judgment under the Workmen's Compensation act is res adjudicata of the nature and extent of the disability then existent. Cirillo v. United Engineers and Constructors, Inc., supra. The deputy commissioner, the same at both hearings, considered that the present increased disability is the result of the pre-existing ailments, without contribution from the incidents of employment. The Court of Common Pleas agreed. Our study of the proofs brings us to the same conclusion.

We discover no error in the form of the determination and judgment in the Common Pleas or in the method by which the judge arrived thereat. The decision plainly shows that the judge studied the transcript of the record and testimony and the arguments of counsel. He briefly comments upon the professional testimony and gives his reaction to those proofs;

and in so doing commits no reversible error. We are satisfied from the record that he gave original study to the case and reached an independent conclusion. He arrived at the same result as did the bureau and incorporated within his determination the award of that tribunal. It was not necessary that he ...


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