For the prosecutors, Maurice C. Brigadier.
For the respondent, David Roskein (John A. Laird, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The basic question for decision in this workmen's compensation case is whether the employee carried the burden of establishing his asserted claim for compensation because of subsequently increased incapacity. R.S. 34:15-27.
In the Bureau and in the Essex County Court of Common Pleas the question was resolved in the affirmative; and the judgment, based on the original award in the Bureau of 40%, was increased in the Bureau and in the Pleas to 100% of permanent total incapacity. Our independent appraisal of the proofs, and the law applicable thereto, lead us to the conclusion that the increase was right.
The applicable law is clear. The judgment of March 15th, 1940, determining that petitioner had suffered 40% partial permanent incapacity is res adjudicata of the nature and extent of the incapacity at the time of such award. That award must be compared with the condition and ability of the employee at the time the increase was granted in the Bureau on July 14th, 1943. Breheny v. County of Essex, 21 N.J. Mis. R. 253; 33 A.2d 294. In the words of Mr. Justice Case for the Court of Errors and Appeals in Cirillo v. United Engineers and Constructors, Inc., 121 N.J.L. 511, 514; 3 A.2d 596, we are concerned with two conditions, namely, "one which was and one which is." Comparison is the yardstick of admeasurement. See Rotino v. J.P. Scanlon, Inc., 125 N.J.L. 227, 228; 15 A.2d 336; affirmed, 126 N.J.L. 419; 19 A.2d 777.
What was the nature and extent, or condition and ability, of petitioner at the time (March 15th, 1940) of the original award of 40% of total permanent disability?
The determination of facts and rule for judgment disclose
that respondent, Patrick Breheny, petitioner below, then about fifty years of age, was employed by the County of Essex as a painter for about six years. While so employed he suffered a coronary thrombosis as the result of the strain or effort which he exerted on May 18th, 1938, when with the aid of fellow employees he was engaged in the act of raising a heavy plank from the floor to the scaffold upon which he was standing, and in hoisting the scaffold. He was confined to bed for about "six weeks," and thereafter "remained at complete rest until November 1st, 1938, when he returned to his employment." Thereafter he did not work on "numerous occasions" because of his heart condition. When he did work, he "confined himself to the lighter duties of his trade, such as mixing paint and doing ground work." Notwithstanding the lighter nature of his work, he continued generally to suffer "body weakness," "occasional pain in the region of his heart," "shortness of breath, especially on exertion or on walking up and down stairs," he tired "easily," and felt more or less exhausted "after the end of his day's work."
The deputy commissioner concluded that the effort exerted by petitioner on March 18th, 1938, "superimposed upon his underlying arteriosclerotic cardiac vascular system, produced a spasm in the coronary artery which resulted in a coronary thrombosis from which he is suffering," that there was causal relation between the petitioner's heart condition and his effort or exertion on May 18th, 1938, hence he suffered an accident which arose out of and in the course of his employment. Accordingly, the deputy ...