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Ferraro v. Zurcher

February 20, 1951

DOMINICK FERRARO, PLAINTIFF-RESPONDENT,
v.
GOTTHARD ZURCHER, SR., AND UNITED STATES CASUALTY CO., DEFENDANTS-APPELLANTS



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.

Brennan

Appellant insurance company filed with the Division (then styled Bureau) of Workmen's Compensation a duly executed Form 3 (R.S. 34:15-98) dated December 21, 1945, undertaking to pay petitioner workmen's compensation for permanent total disability. The bureau approved the agreement by an executed Form 5(a) dated February 13, 1946 (R.S. 34:15-50). Payments were made under the agreement until October 13, 1946, when they were stopped. Petitioner filed his claim petition on May 26, 1948. The deputy director after hearing found that petitioner's disability did not exceed 20 to 25 per cent permanent partial disability and dismissed the petition by determination entered May 31, 1949, because the payments which had been made under the agreement exceeded the compensation payable for such disability. The Passaic County Court on appeal found that petitioner had suffered permanent total disability and on August 23, 1950, entered judgment accordingly. Defendants appeal.

Petitioner argues that the approval of the agreement set forth in Form 5(a) issued by the bureau has the force of a judgment binding upon appellants, subject to modification only if the appellants have proved a diminution of disability in accordance with R.S. 34:15-27. Not so. An approval pursuant to R.S. 34:15-50, which is what the approval was, is not a determination upon the merits and thus is not a finality to be reopened only to the extent permitted by R.S. 34:15-27. Form 5(a) itself provides: "If payments are not made as set forth (or if, for any reason, there should be a modification of this settlement) this Bureau should be notified at once." The Division of Workmen's Compensation was powerless to view that approval as final. Nagy v. Ford Motor

Co. , 6 N.J. 341 (1951); Donofrio v. Haag Bros., Inc. , 10 N.J. Super. 258 (App. Div. 1950). Before there exists an adjudication of the extent of disability which may be modified only under R.S. 34:15-27 (that is, when, as here, the only issue involved is the extent of disability), there must be a determination and rule for judgment which includes a finding of fact as to the amount of the then present disability and which is entered after hearing in open court upon consideration of the sworn testimony of petitioner and other witnesses present, together with any "stipulations of the parties," and which otherwise satisfies the requirement of the proviso to R.S. 34:15-22, as amended by L. 1945, c. 74, p. 390, effective April 2, 1945.

No agreement between an employee and employer or insurance carrier for compensation not approved by a hearing deputy in open court operates as a bar to the formal determination of any controversy. R.S. 34:15-22; Nagy v. Ford Motor Co., supra. When payments under the agreement stopped, petitioner availed himself of the remedy provided by R.S. 34:15-51, that is, he filed his petition within two years after the last payment for an original and formal adjudication of his claim upon the merits. The burden of proof upon that petition was not upon appellants to prove a decrease of disability but upon petitioner to sustain by preponderant evidence the claim asserted therein that his permanent disability was total.

At best the agreement was some evidence against appellants as a declaration against interest. Miller v. National Chair Co. , 127 N.J.L. 414, 423 (Sup. Ct. 1941); affirmed, 129 N.J.L. 98 (E. & A. 1942). It spoke, however, as of December 21, 1945, and upon this record was not of itself sufficient proof to sustain the allegation of permanent total disability made in the petition filed May 26, 1948. Cf. Burns v. Thomas A. Edison , 92 N.J.L. 288 (Sup. Ct. 1919); Dubies v. Manufacturers Liability Insurance Co. , 96 N.J.L. 107 (Sup. Ct. 1921); affirmed, 97 N.J.L. 567 (E. & A. 1922); Craciola v. Lewis , 253 N.Y.S. 752 (App. Div. 1921); Lanni v. Amsterdam Building Co. , 217 App. Div. 278, 216 N.Y.S.

763 (1926); Anthus v. Rail Joint Co. , 185 N.Y.S. 314 (App. Div. 1920); affirmed, 231 N.Y. 557, 132 N.E. 887 (1921); O'Boyle v. Harry Seitz & Sons , 160 A. 145 (Super. Ct. Pa. 1932).

The question for our decision is what percentage of permanent disability was proved. In our approach to the problem determinative weight in the first instance is given to the factual findings of the County Court. Donofrio v. Haag Bros., Inc., supra; McGowan v. Peter Doelger Brewing Co. , 10 N.J. Super. 276 (App. Div. 1950). We are empowered, however, in our discretion, to make independent findings of fact when the interests of justice require it, and our review of this voluminous record persuades us that we should do so in this case. Rule 3:81-13 (cf. Rules 1:2-20 and 4:2-6).

Petitioner was 67 years of age when on August 25, 1943, he suffered a serious brain injury by falling from a garbage truck on which he was working for the defendant Zurcher. He suffered a subarachnoid hemorrhage, although there was no skull fracture. He was hospitalized for seven weeks. Three weeks after the accident the insurance company retained Dr. Bohl to attend him; Dr. Bohl treated him thereafter and for a considerable period after his discharge from the hospital on October 13, 1943. The doctor's opinion in 1945 was that petitioner was totally disabled and upon that opinion the insurance company prepared and filed the Form 3 agreement of December 21, 1945. Dr. Bohl re-examined petitioner on October 12, 1946, and concluded he had made "a remarkable recovery" and that his then present overall permanent partial disability did not exceed 20 to 25%. The insurance company discontinued payments under the agreement the following day, October 13, 1946.

The petitioner had performed arduous manual labor all his life. His testimony at the hearing and his complaints to his own medical witness, Dr. Policastro, when that doctor examined him on June 1, 1948, and to Dr. Blumberg, appellants' medical witness, who examined him on January 3, 1949, were of alleged virtual loss of memory, ...


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