On appeal from Essex County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is an appeal from the judgment of the Essex County Court in a workmen's compensation case to the Appellate Division of the Superior Court. It has been brought here on our own certification.
The pertinent facts are that the petitioner sustained injuries to his back and spine as the result of his lifting a bag of acetate, weighing approximately 100 pounds, and an ensuing fall, while in the employ of the appellant. It is conceded that the accident arose out of and in the course of the employment. An informal award was allowed by the Workmen's Compensation Bureau and the last payment of compensation
thereunder was made on December 18, 1945. A claim petition for compensation was filed in the Bureau on November 6, 1947, alleging permanent disability resulting from injuries to "Back, spine, complications arising therefrom." The petition was filed within two years of the last payment under the informal award, in accordance with R.S. 34:15-51. An answer was filed by the appellant and a demand for particulars was served upon the petitioner. The demand for particulars contained, inter alia, the following question:
"4. What are the complications mentioned in question 23 of the claim petition?"
The petitioner's answer, in his bill of particulars, to the foregoing question, was:
On September 23, 1948, at the hearing, before the Deputy Director of the Workmen's Compensation Division, the petitioner moved to amend his claim petition and the bill of particulars to include a claim for neurological injury arising out of the accident. The motion to amend was resisted by the appellant on the ground that the proposed amendment set forth a new and separate cause of action and that the applicable limitation period had expired. Argument on the motion was adjourned until September 27, 1948, when the motion to amend was denied by the Deputy Director of Workmen's Compensation Division on the ground that it embraced an additional claim and was not made within the two year period limited by the statute, R.S. 34:15-51. The Deputy Director proceeded with the conduct of the hearing but limited the proofs to an orthopedic injury and an award was made to the petitioner on that basis. An appeal was filed by the petitioner to the Essex County Court charging, in effect, that the Deputy Director had erred in refusing to allow the proposed amendments and that as a result thereof the award was inadequate. The Essex County Court reversed the Workmen's Compensation Division and remanded the cause for a redetermination of the entire issue of orthopedic and neurological
disability. The employer has appealed from the County Court's judgment.
The sole question involved on this appeal is whether a workmen's compensation claim petition alleging permanent disability, which has been timely filed, may be amended at the time of hearing, after the period for filing claims has expired, to include a neurological injury alleged to have arisen out of ...