On appeal from the Passaic County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J.
[3 NJ Page 438] This is an appeal from a final judgment of the Passaic County Court in favor of the petitioner-respondent, entered on June 8, 1949, which reversed and set aside an order signed by the Commissioner of Labor dated March 29, 1949, dismissing the application of the petitioner-respondent for benefits from the "One Per Cent Fund." R.S. 34:15-95. The appeal was taken to the Appellate Division
of the Superior Court and, while pending there, was certified here on our own motion.
In 1940 the respondent suffered a compensable right strangulated inguinal hernia while employed by the Passaic Gera Mills, which condition was surgically corrected. In February, 1942, the respondent suffered a non-compensable left inguinal hernia which was not operated on and for which he wore a truss. On August 31, 1942, the respondent, while still employed by Passaic Gera Mills, sustained a coronary occlusion and subsequently was awarded 40% of total permanent disability in the Workmen's Compensation Bureau. Upon the termination of his compensation payments the respondent filed an application for benefits under the "One Per Cent Fund" which was denied and his petition was dismissed.
The respondent contends that he became and was totally and permanently disabled on August 31, 1942, following the compensable heart injury and that the total permanent disability was and is the result of the combination of the heart injury and pre-existing condition so as to entitle him to benefits under the act.
It is admitted that the respondent sustained total disability after having been previously permanently and partially disabled by a compensable accident and that such a condition existed at the time of his application for benefits.
The testimony in the case indicates that prior to the heart attack in August, 1942, the respondent was afflicted with an arteriosclerosis, though this would not, standing alone, interfere with his being employed as a working unit and carrying on his duties. However, there is testimony that the left inguinal hernia and the heart condition must be considered as overlapping and that the combination of the two resulted in the total disability. This was so because the added strain from the inoperable hernia would throw an additional strain on anything the man attempted to do and this added strain and undue burden imposed upon the other factors, namely the arteriosclerosis and the after effects of the coronary occlusion, would be one he could not physically cope with, and the hernia plus the heart condition were the sole two factors
which caused the total disability. The testimony is that the heart condition and the arterial disease added considerably to the risk of the operation and in the considered judgment of the treating physician would not warrant his operating, and in his opinion an operation for the left inguinal hernia was not feasible in 1942 nor is it now despite the fact there has been no change in the general arterial condition.
The appellant contends that the respondent does not come within the statutory provisions.
R.S. 34:15-95 provides inter alia:
"The sums collected under section 34:15-94 of this Title shall constitute a fund out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments in accordance with the provisions of paragraph (b) of Section 34:15-12 of this Title shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation ...