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Clark v. American Can Co.

Decided: May 15, 1950.

GEORGE CLARK, PETITIONER-RESPONDENT,
v.
AMERICAN CAN COMPANY, DEFENDANT-APPELLANT



On appeal from the Hudson County Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Oliphant, J. Heher, J., concurring in result.

Oliphant

The primary question involved in this appeal is the construction and application of R.S. 34:15-12(b) which provides, under certain conditions, for extended compensation payments for those employees who have suffered disability total in character and permanent in quality. The appeal was taken to the Appellate Division of the Superior Court but has been certified here on our own motion.

By a judgment of the Workmen's Compensation Bureau, dated December 16, 1937, it was determined that the petitioner, while in appellant's employ, was injured in an accident arising out of and in the course of his employment and he was awarded compensation based on 25% of total permanent disability. Later the petitioner applied for increased disability payments and by a judgment of the Bureau under date of July 3, 1942, he was awarded total permanent disability, or 400 weeks. That judgment included the following words: "The petitioner shall receive the benefits of R.S. 34:15-12(f)." Admittedly it was intended to read "12(b)." Under the last mentioned judgment the final payment, completing the 400 weeks, was made on June 20, 1945. Petitioner was gainfully employed, though intermittently, from some time in 1943 to January 23, 1948, and when working earned more than he had received from appellant as wages. The proceeding to obtain

the extended benefits of reparative compensation was instituted more than two years after the final disability compensation payment and resulted in a judgment of the Bureau that petitioner was entitled to such reparative compensation, which award and judgment was affirmed October 21, 1949, by a judgment of the Hudson County Court. It is this last judgment from which this appeal is taken.

Three points are raised by appellant in contending the award is in error: (1) that the employee failed to submit himself for rehabilitation; (2) that since he failed to apply for the extended reparative compensation until more than two years after the last disability payment the claim is barred by the Statute of Limitations, and (3) petitioner rehabilitated himself.

The whole premise on which appellant's first point is based is that on the evidence the petitioner did not submit himself for rehabilitation, in fact he rejected it. The brief of appellant on this point is factually incorrect in several instances and is misleading.

The statute, R.S. 34:15-12(b) in part provides: "This compensation shall be paid for a period of four hundred weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the Rehabilitation Commission." If rehabilitation is ordered and there is a rejection of same or a conscious failure to accept the benefits of such attempted rehabilitation, compensation rightfully ceases at the end of the 400-week period. Lukis v. Armour & Co., 125 N.J.L. 92 (Sup. Ct. 1940); Petersen v. Foundation Co., 128 N.J.L. 234 (Sup. Ct. 1942).

On July 12, 1945, the Medical Board of the Rehabilitation Commission, in an inter-office communication, advised the Bureau that petitioner had a Strumpell-Marie arthritis involving the spine, hips and other joints, that he was 100% disabled but that there was a possibility of rehabilitation and recommended that an attempt be made to rehabilitate him for some type of sedentary work. While emphasis is placed

by appellant on this letter and several others which passed between the Commission and the petitioner the record is devoid of any evidence that petitioner had any notice or knowledge of the letter of July 12th. Taking this and all other communications into consideration we are convinced, as was the Bureau and the County Court, that the petitioner never rejected rehabilitation and further, that no order or direction had ever been made directing him to report for rehabilitation. Not only are these factual conclusions amply supported but there is not a scintilla of evidence to the contrary. We conclude, therefore, that appellant's argument that petitioner is barred from recovery by virtue of having rejected ordered rehabilitation is wholly without merit.

In support of its second point appellant relies upon the provisions of R.S. 34:15-27, R.S. 34:15-51 and the case of Diehl v. New Jersey Power & Light Co., 4 N.J. Super. 175 (App. Div. 1949). That case was in the nature of a friendly action in which there had been no formal petition filed, no formal agreement, no formal award or adjudication of compensation made. In 1933 the petitioner lost both hands in an accident and it was conceded that he was 100% disabled and compensation for 400 weeks had been paid, a total of $7,799.88 for temporary and permanent disability, the last payment of which was made June 21, 1941. In the interim the company had given the petitioner a new job which he was able to do at the same salary he had been receiving at the time of the original accident in 1933. Within two years of the last payment of compensation the petitioner filed a petition for reparative compensation under R.S. 34:15-12(b) and it stated its purpose was to protect the petitioner in the event "any subsequent developments would prevent me from continuance of my present employment." All the parties agreed that there ...


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