On appeal from the Workmen's Compensation Division of the Department of Labor.
Respondent appeals from an award to petitioner entered on November 29, 1951, by the Workmen's Compensation Division, for increased disability, three and one-half per cent of total permanent.
Petitioner sustained injuries to her back and chest as a result of an accident occurring on March 18, 1948, and after hearing before the Workmen's Compensation Bureau (now Division of Workmen's Compensation) was awarded three per cent partial permanent disability on October 18, 1948.
On September 9, 1950, petitioner filed a second petition alleging her disability had increased since the prior award. Following hearings thereon, the Workmen's Compensation Division on November 29, 1951, determined that petitioner, although not suffering from any increased disability of an orthopedic nature, had sustained "some increase in her disability on the basis of a neurosis."
The respondent, challenging the legal propriety of this ruling, contends that petitioner failed to sustain the burden of proving an increase in her incapacity since the previous determination; that the petitioner in her original claim having failed to allege a neurosis was now barred from maintaining a second petition for increased disability based upon a neurosis; that the Workmen's Compensation Division lacked
jurisdiction to entertain the claim for increased neurological disability because the statutory limitation period (two years from the date of the accident) had expired; that the Workmen's Compensation Division erred in awarding increased disability based upon a neurosis since there was no comparison made of petitioner's condition at the time of the original determination with her present condition; and that the increase in incapacity, if any, is attributable to some cause other than the compensable accident of March 18, 1948.
The initial question for this court's determination is whether, in view of the fact that petitioner's second claim was not filed within two years of the occurrence of the accident, and also in view of the fact that there was no specific allegation of a neurosis in her original petition, petitioner is now precluded from maintaining this second petition for increased disability based upon a neurosis.
It is the contention of respondent, in this regard, that petitioner's claim is based upon two separate and distinct injuries allegedly arising out of the accident -- one orthopedic; one neurological -- and that having failed to assert and prove the latter within the statutory limitation period she is now barred from obtaining an award based thereon.
It is further argued that by petitioner's failure to assert any claim for any permanent disability referable to a neurosis, in her initial petition, and no award having been made therefor, she is foreclosed from seeking increased disability based upon a neurosis.
As authority for both these propositions respondent relies heavily upon Ponek v. American Steel Foundaries , 19 N.J. Misc. 640 (Dept. Labor 1941) (which, like the instant case, involved a petition for increased disability based upon a neurosis) and Herbert v. Newark Hardware & Co. , 107 N.J.L. 24 (Sup. Ct. 1930); affirmed, 109 N.J.L. 266 (E. & A. 1932).
However, the more recent decision of Ginter v. Westinghouse Electric & Manufacturing Corp. , 11 N.J. Super. 338 (App. Div. 1951) appears to ...