On appeal from Superior Court, Appellate Division, whose opinion is reported in 7 N.J. Super. 24.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J. Heher, J., concurring in result.
This is a workmen's compensation case. Certification was granted by this court, pursuant to an application therefor by the petitioner employee, to review that part of a judgment of the Superior Court, Appellate Division, affirming a judgment of the Union County Court which had reduced the quantum of an award of the Division of Workmen's Compensation of the New Jersey Department of Labor and Industry, for increased partial permanent disability from 40 per cent to 25 per cent. A petition for certification by the respondent employer, to review the judgment of the Appellate Division in other particulars, was denied.
The sole question for determination on this appeal relates to the propriety of the Appellate Division's affirmance of the County Court's reduction of the award for increased partial permanent disability from 40 per cent to 25 per cent.
The pertinent facts, so far as they are relevant to a determination of the present appeal, are as follows: The petitioner originally sought compensation upon the allegation that on July 3, 1940, while in the employ of the respondent, he sustained permanent injuries to his abdomen and back as a result of an accident arising out of and in the course of his employment. On December 16, 1941, the Workmen's Compensation Bureau determined that the petitioner had proved his claim and awarded compensation for temporary disability and for permanent disability of 30 per cent of total disability. The amounts so awarded were paid by the respondent, the last payment thereunder being made on March 9, 1944. On [5 NJ Page 469] March 7, 1946, within two years from the date the petitioner last received a payment, the petitioner filed a claim petition with the Workmen's Compensation Bureau of the New Jersey Department of Labor, alleging that permanent injuries had resulted to his abdomen, back, limbs and body, and that he had suffered an increase of disability beyond that for which he had received an award under the 1941 judgment. L. 1911, c. 95, as am. L. 1913, c. 174, L. 1919, c. 93 and L. 1931, c. 279 (R.S. 34:15-27) permits such a review. The pertinent part of the statute provides that "A formal award may be reviewed within two years from the date when the injured person last received a payment, upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased." At the hearings on the 1946 petition, the testimony was limited to that of the petitioner, his wife, Dr. Heyman and Dr. Briggs. The petitioner testified with respect to his alleged increased incapacity and his testimony was, in general, supported by that of his wife. Dr. Heyman, a physician who had examined the petitioner on several occasions subsequent to the filing of the petition in 1946, testifying for the petitioner, estimated the petitioner's present disability at 75 per cent of total disability but he did not express any opinion, predicated upon a hypothetical question or otherwise, as to the amount of increased disability since the 1941 award. Dr. Briggs, a witness for the petitioner, testified that, in his opinion, the petitioner's disability had increased from 40 to 45 per cent of total disability in 1941 to around 70 per cent in 1948 and that he attributed this increase in percentage of total disability to the accident and its sequeloe. The respondent, while denying in its answer that the petitioner's disability had increased as alleged, did not introduce any testimony, medical or otherwise, at the hearings. On May 17, 1949, pursuant to the hearings held on the last mentioned petition, the Division of Workmen's Compensation of the New Jersey Department of Labor and Industry, determined that the petitioner had suffered an increase in his disability flowing out of the adjudicated accidental
occurrence, and that such increase amounted to 40 per cent of permanent disability. On appeal to the Union County Court the increased award was, on September 13, 1949, reduced to 25 per cent. The County Court, in arriving at its decision, said: "I have carefully considered all the evidence and have given due weight to all the factors including the fact that the man's injury to his abdomen is no longer a factor in this case, and have concluded that there should be an award of 25 per cent increased total permanent incapacity due to the accident and its sequeloe." The Appellate Division, on March 1, 1950, affirmed the judgment of the Union County Court, in all respects, except as to counsel fees, and in so doing stated: "As we understand the testimony of Dr. Briggs the increased disability was twenty-five to thirty per cent. This was the only medical testimony which compared the petitioner's condition in 1941 with his present condition and the County Court properly declined to sustain the Bureau's award for a greater amount."
The present appeal is addressed to the propriety of the Appellate Division's affirming the Union County Court in this particular. The sole argument of the petitioner proceeds along the vein that at the hearing of the application for additional compensation, based upon increased disability, Dr. Briggs, a witness for the petitioner, testified that in his opinion the petitioner's current disability was 70 per cent of total disability; that there was no contradictory testimony offered by the respondent; that the 1941 award fixing partial permanent disability of 30 per cent is res judicata of the extent of disability at that time; that the increased disability must be measured by the difference between the original judgment of 30 per cent and the present disability, estimated by Dr. Briggs to be 70 per cent; and that since such difference is 40 per cent a judgment for increased disability in the latter amount must necessarily follow.
We are not in accord with the petitioner's reasoning and the conclusion reached by him. We agree that the 1941 award is final and conclusive as to all questions of law and
fact comprehended by that determination, including those involving the right to compensation and the nature and extent of the existing disability. Such a determination is res judicata, subject only to a reopening of the judgment, a correction on appeal, and the authority of the Division of Workmen's Compensation of the New Jersey Department of Labor and Industry, formerly designated as the Workmen's Compensation Bureau of the New Jersey Department of Labor, under R.S. 34:15-27, to review its adjudication and to modify the award of compensation to accord with an after-occurring increase or diminution of the disability which flows from the established compensable injury. This proposition is established by our cases on the subject. Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72 (Sup. Ct. 1936); affirmed, 118 N.J.L. 301 (E. & A. 1937); Cirillo v. United Engineers & Constructors, Inc., 121 N.J.L. 511 (E. & A. 1939). It is also established that the continuing jurisdiction of the former Workmen's Compensation Bureau of the New Jersey Department of Labor, now known as the Division of Workmen's Compensation of the New Jersey Department of Labor and Industry, is limited to a review of the disability, insofar as it may have subsequently increased or diminished, and this is the only proper subject of review under R.S. 34:15-27. Tucker v. Frank J. Beltramo, Inc., supra. It is further established that "A claim of increase or decrease of disability is grounded in the comparative condition and ability of the workman and, to prevail, must be supported by proofs which permit comparison." Cirillo v. United Engineers & Constructors, Inc., supra. In the Cirillo case, it was also said, at page 514:
"We think that opinion evidence of present disability based only upon existing physical or mental condition standing alone, is not competent to sustain a finding on the relative fact of an increase or a decrease in disability. To make such testimony competent for that purpose the witness should at least be informed from his own knowledge, made manifest, or from proofs aliunde incorporated into a question, what the workman's condition was at the time when the court rated it at a fixed ...