On appeal from Division of Workmen's Compensation. Determination of facts and judgment.
This is an appeal from a determination of facts and order of dismissal rendered in the Workmen's Compensation Division of the New Jersey Department of Labor and Industry, in favor of the respondents and against petitioner.
The petitioner-appellant (hereinafter referred to as petitioner) sustained an injury arising out of and during the course of his employment by respondent-appellee (hereinafter referred to as respondent) on November 7 or 8, 1946, for which the petitioner filed a claim petition in the Workmen's Compensation Division, Department of Labor and Industry, on March 24, 1947. At a hearing before Deputy Director John M. Kerner on May 6, 1947, the petition was dismissed on the ground that petitioner had not sustained the necessary burden of proof. From this dismissal the petitioner appealed to the Court of Common Pleas for the County of Middlesex (now County Court and hereinafter referred to as such), and after the filing of briefs, argument by counsel and studying the transcript, a judgment was entered reversing the Workmen's Compensation Division decision and
establishing the disability of petitioner at 40% of permanent total; this judgment was affirmed on appeal by the then Supreme Court (now the Superior Court) and affirmed by the present Supreme Court and thereafter paid by the respondent with interest.
On August 28, 1951, the petitioner filed a second claim petition, commonly referred to as a "re-opener," claiming increased disability and demanding additional payment therefor. Respondent filed a notice to dismiss returnable June 6, 1952 before Deputy Director Kerner on the ground that the Workmen's Compensation Division lacked jurisdiction to entertain the petition. On July 22, 1952, after argument by counsel for petitioner and respondent, the deputy director granted respondent's motion, and the petitioner is appealing.
It is the opinion of this court that the deputy director erred in refusing to retain jurisdiction of petitioner's petition and that the Workmen's Compensation Division has authority to hear and determine the petition for increased disability. The Workmen's Compensation Division has continuing jurisdiction to modify an award of compensation to accord with a change of degree of capacity arising from such an injury. Ginter v. Westinghouse Elec. & Mfg. Corp. , 11 N.J. Super. 338 (App. Div. 1951); Florek v. Board of Education of Newark , 18 N.J. Super. 425 (Cty. Ct. 1952). The Workmen's Compensation Act specifically gives such authority, by two sections of the act, namely R.S. 34:15-27 and R.S. 34:15-57:
As amended by L. 1952, c. 269, R.S. 34:15-27 provides:
"An agreement for compensation may be modified at any time by a subsequent agreement. A formal award, determination and rule for judgment or order approving settlement 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. An award, determination and rule for judgment or order approving settlement may be reviewed at any time on the ground that the disability has diminished. In such case the provisions of section 34:15-19 of this Title with reference to medical examination shall apply."
and R.S. 34:15-57 provides:
"The commissioner, the director, and each deputy director, is hereby authorized to hear and determine the matters in dispute in a summary manner, and each shall have power to modify any award of compensation, determination and rule for judgment or order approving settlement and to provide for the commutation of any such award, determination and rule for judgment or order approving settlement."
The Workmen's Compensation Bureau has been given exclusive original jurisdiction of all claims for workmen's compensation pursuant to N.J.S.A. 34:15-49. The original ...