On appeal from the Workmen's Compensation Division of the Department of Labor.
Petitioner was awarded compensation for total permanent disability by the Workmen's Compensation Division of the Department of Labor and the respondent appeals.
A narrow issue is presented by the appeal. Respondent concedes that petitioner sustained a compensable accident and that she is totally and permanently disabled. However, the claim is that no more than 17 1/2% of the total disability should have been assessed against it and that the remaining 82 1/2% should be charged to the "One Per Cent Fund" (R.S. 34:15-94, et seq.).
The basis for respondent's contention is that the undisputed proof shows that prior to petitioner's accident she was suffering from certain physical abnormalities, namely, hypertension, some loss of hearing, a squint of one eye for which she wore glasses, and a congenital curvature of the spine. And it asserts that her total disability has resulted from laying a separate and distinct disability produced by the accident alongside the preexisting infirmities. This treatment on a
horizontal plane of the various preexisting conditions and an alleged separate and distinct disability from the accident fathers the argument that the employer should be responsible only for the portion of the total disability which derives from the accident.
The statute creating the "One Per Cent Fund," as it is commonly called, provides, among other things, that
"no person shall be eligible to receive payments from such fund:
(b) If permanent total disability results from the aggravation, activation or acceleration, by the last compensable injury, of a pre-existing non-compensable disease or condition." (R.S. 34:15-95).
This excerpt was not part of the act as originally enacted. It followed certain judicial interpretations thereof and clearly manifested an intention to remove from access to the fund those cases where the total disability arose from the "aggravation, activation or acceleration of a pre-existing non-compensable disease or condition" by a compensable injury. (Vandenberg v. John De Kuyper & Son , 5 N.J. Super. 440 (App. Div. 1949)).
The evidence adduced in the case establishes beyond question that Miss Davenport had adjusted herself to her congenital back malformation and that neither it nor any of her other conditions interfered with the performance of her duties as an employee.
At the time of the accident she was an elderly woman, 71 years of age. She had been in the respondent's employ as a pastry chef and as a kitchen assistant for 19 years. Her hours were long and the work was moderately heavy. During this long period she discharged her duties as well as any other employee and without complaint. Her employer always found her work to be satisfactory. She had ...