On cross-writs of certiorari.
For the prosecutor, Cox & Walburg (Arthur F. Mead, of counsel).
For the respondent, Jacob R. Mantel.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision, on the facts of this workmen's compensation case, is whether, as claimed by the employer and employee, a wrong basis or method was employed in determining the question of compensable disability awarded the employee.
On May 25th, 1938, Frank Colarusso, hereafter referred to as petitioner, a laborer, 29 years of age, was employed as a general helper by Sam Bahto, trading as Liberty Cleaners and Dyers, hereafter referred to as respondent. While so employed, petitioner sustained an accident which concededly arose out of and in the course of his employment. Pipes which petitioner was removing from a tank "fell into a pool of acid causing same to splash in each [of his] eyes."
What were the disabilities flowing from the personal injuries which the petitioner sustained as a result of the
accident? Cf. Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108, 114; 192 A. 294. The record discloses that on November 7th, 1938, petitioner filed a claim petition for compensation with our Workmen's Compensation Bureau. In this petition he alleged that as a result of the accident his "left eye" was "entirely removed" and that his "right eye" suffered "a fifty per cent. (50%) loss of vision." Respondent answered admitting his liability for the loss of petitioner's left eye on a basis of permanent liability for 100 weeks (N.J.S.A. 34:15-12.s). Respondent further answered that he was voluntarily making payments due petitioner and which payments as made were accepted by petitioner; that there was no "causal relationship" between the accident and injury to the right eye; and that there was in fact no additional disability to the right eye as a result of the accident.
In this posture of the cause, the respective parties agreed "to settle" petitioner's claim, subject to the approval of a deputy commissioner of the Bureau, for 25 weeks for temporary total disability, plus a permanent partial disability based upon 35% of permanent total disability, or 175 weeks, plus allowances of fees for doctors, attorneys, & c. The proposed settlement was approved and a determination of facts and rule for judgment, consented to in writing by the parties, was entered accordingly, on March 13th, 1939, by the deputy commissioner.
Properly treating the settlement as a nullity (P. Bronstein & Co., Inc., v. Hoffman, 117 N.J.L. 500; 189 A. 121; Ruoff v. Blasi, 117 N.J.L. 47; 189 A. 581; affirmed, 118 N.J.L. 314; 191 A. 877), petitioner on January 15th, 1940, filed a second claim petition for compensation. Cf. Stroebel v. Jefferson Trucking and Rigging Co., 124 N.J.L. 210; 11 A.2d 297; affirmed, 125 N.J.L. 484; 15 A.2d 805. In this petition he again alleged that as a result of the accident on May 25th, 1938, his "left eye" was "entirely removed," his "right eye" had a 50% loss of vision and additionally alleged that he suffered "injury to ...