Schettino, Lloyd and Woods. The opinion of the court was delivered by Schettino, J.s.c.
This is a workmen's compensation case. The employer appeals from a judgment awarding compensation for increased disability.
The appeal revolves about the effect to be given to a prior determination between the parties. The first petition was filed on November 13, 1947, and resulted in an award, dated August 9, 1948, for 10% of total permanent disability. On
February 9, 1949, the employee submitted to a surgical operation. He testified that he requested the plant superintendent of the employer to furnish surgery, but that factual incident is of no ultimate significance since the employee disavowed any claim for medical expenses connected therewith, and in our view the issues here raised do not depend upon that circumstance. On October 11, 1949, the employee filed a petition for increased disability, which, after the several steps presently described, resulted in the additional award here challenged.
In the present proceeding, the deputy director dismissed the petition on the ground that in the first matter he had adjudged that surgery was not necessary and that that determination as we read the record of his views, either per se precluded the claim for increased disability or, coupled with the employee's failure to seek leave of the Division to undergo the operation, constituted bad faith barring the additional claim. The County Court, 13 N.J. Super. 286, reversed, holding that the prior award did not determine the issue of need for surgery; that the employee's condition, both in terms of pain and physical disability, had worsened after the first award; and that the employee in good faith followed medical advice recommending the operation. The County Court remanded the matter to the Division for a determination upon the merits. The Division then awarded 7 1/2% additional compensation, and the County Court affirmed. From that judgment, this appeal was prosecuted.
Upon the remand, the Workmen's Compensation Division took testimony offered to show that in the first proceeding the issue of surgery was involved and determined. We need not consider the propriety of that proof for the reason that the evidence thus introduced does not affect the result.
From the proof just referred to, we gather that one month before the hearing in the first proceeding there was an informal conference in an effort to adjust the claim, at which the deputy director observed that a letter report of Dr. Harris, one of the employee's physicians, either suggested or
recommended surgery. The deputy director thereupon said he would like Dr. Harris to testify at the trial concerning that matter. Dr. Harris did testify but no one inquired of him with respect to the need for surgery. The deputy director made such inquiry of other doctors, who testified they were of the view that surgery was not necessary. In his determination in that proceeding, the deputy director said:
"There has been some indirect allusion to surgery. The greater weight of the credible testimony in this case preponderates against that. I am not an orthopedist but I have had many cases of this type under my direct supervision in the years that I have been hearing compensation cases and I have generally found that even if surgery helps the orthopedic element, it does so at the expense of the neurological condition."
The ordering part of the determination is silent on the subject.
In the present proceeding the deputy director said the question of surgery was raised in the first proceeding "and was actually one of the primary issues in the case." We cannot accept that conclusion. The award in the first matter refers to "some indirect allusion to surgery" and that we find to be the accurate description. Neither the petition nor the answer in the first proceeding raised the issue. The petitioner offered no proof on the subject. The most ...