Decided: August 15, 1944.
VITO LEMONGELLI, PETITIONER-RESPONDENT,
THE CARLSON COMPANY, RESPONDENT-PROSECUTOR
On writ of certiorari.
For the respondent, Cohen & Klein (Laurence N. Rosenbaum, of counsel).
For the prosecutor, Kalisch & Kalisch (Isidor Kalisch, of counsel).
Before Justices Parker, Heher and Colie.
[132 NJL Page 71]
The opinion of the court was delivered by
COLIE, J. In 1934 the respondent was awarded in the Workmen's Compensation Bureau 45% of total permanent disability. On appeal to the Common Pleas the disability was increased to 70% of total. In 1940 a petition was filed seeking an additional award on the basis of increased disability. After hearing, the Bureau dismissed the petition holding that there was no increase over the 70% previously awarded. From the dismissal the injured workman appealed to the Common Pleas, which tribunal entered a final judgment awarding 100% total permanent disability. The present writ of certiorari was allowed to review the latter judgment.
[132 NJL Page 72]
The question is purely one of fact and our examination of the evidence adduced at the hearings on the original petition and on the subsequent hearings satisfies us that there was no adequate factual support to the conclusion of the doctors called on behalf of the workman, that there was an increase in disability at the time of the later hearings over and above that previously awarded, but that, on the contrary, any change had been for the better.
The judgment of the Essex Pleas is therefore set aside, with costs.
Mr. Justice Heher dissents from the judgment of reversal.