For the prosecutor, McCarter, English & Egner (Verling C. Enteman and Winslow B. Ingham, II., of counsel).
For the defendant, Kalisch & Kalisch (Isidor Kalisch, of counsel).
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On October 20th, 1930, Cleland sustained severe personal injuries by an accident which arose out of and in the course of his employment with prosecutor as a salesman; and on January 18th, 1932, a judgment was entered in the Workmen's Compensation Bureau awarding him compensation for permanent total disability in conformity with chapter 95 of the laws of 1911, as amended. Pamph. L., p. 134; now R.S. 34:15-1, et seq. There was no appeal from the judgment; and compensation was rendered at the statutory rate for 400 weeks. These payments were completed on May 29th, 1939; and on May 17, 1940, Cleland presented a petition to the Compensation Bureau praying for a continuance of compensation under section 34:15-12b, as amended by chapter 97 of the Laws of 1942. Pamph. L., p. 352. The deputy commissioner made an award in his favor; and the Essex Common Pleas affirmed the judgment. Mr. Justice Parker denied the employer's motion for a writ of certiorari; and the application is now renewed here. It is listed as No. 222 on the calendar of the current term.
In April, 1941, the employer interposed a petition alleging a decrease of the permanent disability since the entry of the original judgment in the Bureau, and praying "a further hearing to establish that fact." An answer was filed, and there the matter rested until July, 1942, when an amended petition was presented averring full payment of the award for permanent total incapacity and a diminishment of the permanent disability since the award was made, and praying "a review of the award" on that ground and for judgment that Cleland "repay" to the employer "all moneys paid" by the latter "in excess of the present amount of the disability." The deputy commissioner, after hearing, found that, while there had been some improvement in Cleland's physical condition, he was still laboring under a disability total in character and permanent in quality. The petition was dismissed. Certiorari was allowed by Mr. Justice Parker. In view of the pendency in this court of the application for a certiorari in No. 222, the writ was granted notwithstanding that an appeal had not been taken to the Court of Common Pleas. The case is No. 243 on the calendar.
This latter proceeding was instituted under R.S. 34:15-27, providing that "An award may be reviewed at any time on the ground that the disability has diminished;" and the contention is that Cleland's incapacity has diminished since the making of the award, and "is now less than 100 per cent. of total," and the judgment of dismissal should be reversed "to the end that a determination of facts and rule for judgment be entered in accordance with the evidence."
Certainly, prosecutor would not be entitled to an accounting for the compensation payments made, if there be a finding of a reduction of the disability to a degree less than total, for the statute confers no such jurisdiction upon the Bureau. This is a function wholly statutory in origin; and the Bureau's authority is confined to that granted in express terms and such as is reasonably to be implied.
Presumably, the primary purpose is to have it established that Cleland's permanent incapacity is now less than total, and thus to avoid liability for continuing benefits under section 34:15-12b, supra. But section 34:15-27, supra, seems to have been designed to confer a continuing jurisdiction to regulate the basic compensation payments in consonance with after-occurring changes of disability. On the other hand, section 34:15-12b provides for an "extension of compensation payments beyond 400 weeks." Such "extension" of compensation, in the statutory intendment, is obtainable only in the event that certain conditions are met, i. e., that 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, in which case further weekly payments shall be made during the period of such disability, the amount thereof to be the previous weekly compensation payment diminished by that portion thereof that the wage, or earnings, he is then able to earn, bears to the wages received at the time of the accident." This language plainly connotes an inquiry into the extent of the claimant's incapacity. The test is whether he has submitted to such "physical or educational rehabilitation" as may have been
directed by the Commission, and, because of "such disability," it is "impossible for him to obtain wages or earnings equal to those earned at the time of the accident." If this inquiry be resolved in the claimant's favor, what he is "then able to earn" is taken into account in fixing the amount of the "further weekly payments" to be made "during the period of such disability." Thus, a broad revisory power is vested in the Bureau. The extended payments are made subject "to such periodic reconsiderations and extensions as the case may require." Continuing permanent total disability is a sine qua non to such relief; and, by the same token, its nonexistence is a defense to a petition therefor. It is also provided in this section that such "extension" of compensation benefits shall apply "only to disability total in character and permanent in quality." This has ...