On application for writ of certiorari.
For the petitioner-prosecutor, Isadore Rabinowitz and Nathan Rabinowitz.
For the respondent-defendant, John W. Taylor.
Before Justices Parker, Donges and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. A rule to show cause why certiorari should not issue has been allowed, to review the judgment of the
Passaic County Court of Common Pleas, affirming a judgment of the Workmen's Compensation Bureau, which dismissed petitioner-prosecutor's claim petition. An original claim petition was filed on April 27th, 1943, and resulted, following hearing, in a judgment in petitioner's favor. The Bureau found that the petitioner received injuries to both of his hands from an accident arising out of and during the course of his employment, causing "a disability permanent in quality and partial in character, which is as follows: 20% of total or 100 weeks." No claim for temporary disability was made in that proceeding, and, accordingly, none was allowed. Findings of fact and rule for judgment were entered in the Bureau on July 17th, 1944. On February 24th, 1945, the petitioner-prosecutor filed the petition under review.
The petition in question alleges, inter alia, that the petitioner herein was compelled to stop work on January 3d, 1945, by reason of his hand injuries, and returned to work February 19th, 1945. The petition then goes on to say, "this petition is filed for recurrent temporary disability and reimbursement of medical expenses incurred by reason of operation performed upon petitioner's hands." It is to be noted that the petition under review is not a proceeding for review of a formal award made in accordance with the provisions of R.S. 34:15-27, but is rather in the nature of an original claim petition alleged to have been brought within the two years' period of statutory limitation, whereby the injured employee seeks recovery for alleged temporary disability and reimbursement of medical expenses arising out of an operation performed upon his hands, for which injuries the employee has previously received an award for partial permanent disability. Counsel for both parties agree that such is the nature of the proceedings. Likewise, it is not disputed that the operation in question resulted in a substantial reduction of the percentage of permanent disability. The record reveals that the original award for partial permanent disability has been paid by the respondent-defendant, and that the money so paid by the employer to the employee, in pursuance of the award, cannot be recovered; there being no provision in the Workmen's Compensation Act for such return.
In so far as we are able to discern from the record, the operation upon petitioner-prosecutor's hands was entirely voluntary on his part. As stated, it is not disputed that the petitioner has received full compensation for his permanent disability. In short, we are now asked to allow a claim for temporary disability occurring after full compliance on the part of an employer with an award of permanent disability, which claim arises from a voluntary action on the part of the injured employee in the nature of an operation upon the injured members of his body. The question at issue is a novel one and we have not had called to our attention any rulings of our courts upon this specific issue. The learned judge below affirmed the judgment of dismissal on the grounds that there was no provision in the Workmen's Compensation Act expressly authorizing, in the circumstances of this case, the dismissed petition and nothing from which such authority may be reasonably implied. See Sassarro v. Wright Aeronautical Corp., 24 N.J. Mis. R. 57; 46 A.2d 52. In this finding we concur.
The legislature, in its wisdom, in so far as compensation for temporary disability is concerned, provided in the ...