This is an appeal by Joseph A. Caputo, petitioner, from the determination of facts and rule for judgment entered on May 21, 1953, in the New Jersey Department of Labor and Industry, Division of Workmen's Compensation against Best Foods, Inc., the respondent, awarding petitioner $2,225 for temporary disability, $11,250 for permanent disability of 100% until December 15, 1959, after which payments are to continue in accordance with R.S. 34:15-12, subject to physical or educational rehabilitation. By the said judgment the Division of Workmen's Compensation refused to direct respondent to pay petitioner $6,829.50 paid by a third party to respondent to cover $3,829.50 for medical bills and $3,000 for compensation payments up to the time of settlement by third party with petitioner; and said judgment denied petitioner counsel fees and the payment to petitioner by respondent of the sum of $10,000 attorney's fees paid by petitioner to his attorneys in the third party action, which is the basis of this appeal.
The respondent contends that petitioner was not entitled to counsel fees on his awards for temporary and permanent compensation because upon the happening of the accident respondent admitted liability and paid the petitioner the compensation provided for by the statute; that since the third-party recovery exceeded the total compensation award it was entitled to the $6,829.50 out of the third-party settlement; that petitioner was not entitled to be paid by the respondent the $10,000 which he paid his attorney in the third-party action.
The petitioner suffered the accident on September 1, 1949 during his employment by respondent, and was injured while using a pressure gauge to measure oxygen passing into a trailer truck when the gauge exploded in his face causing total blindness and other injuries, totally disabling him, for which respondent promptly admitted liability and subsequently without contest paid him $3,000 for compensation and expended $3,829.50 for medical expenses on petitioner's behalf. Shortly thereafter petitioner made a settlement with
the third party, which was the American Chain and Cable Company, charged with the liability for the accident, in the sum of $60,000, out of which petitioner's attorney in said suit received a counsel fee of $10,000 and respondent was reimbursed for the $6,829.50 it had thereunto paid for compensation and medical expenses, making a total deduction of $16,829.50 and leaving for petitioner the balance of $43,170.50.
The award is at the rate of $25 per week, so that the net sum received by petitioner would cover a period of about 33 years, and being 49 years old now he would be 82 years old if he survives the payments; and if he does he will be entitled to receive further payments of $25 per week under the statute if he has not been rehabilitated by then. Since the total award for temporary and permanent disability, $13,475 -- $2,225 temporary and $11,250 permanent -- petitioner has definitely received a sum greatly in excess thereof, so that R.S. 34:15-40 does apply and respondent is entitled to be released from liability under the specific award although it will be required to continue payments in the future if he survives and is not rehabilitated when the weekly payments exceed the amount he had received from the third party.
R.S. 34:15-40 provides in part:
"Where a third person or corporation is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein. In the event that the employee or his dependents shall recover and be paid from the said third person or corporation, any sum in release or in judgment on account of his or its liability to the injured employee, the liability of the employer under this statute thereupon shall be only such as is hereinafter in this section provided.
(A) The obligation of the employer or his insurance carrier under this statute to make compensation payments shall continue until the payment, if any, by such third person or corporation is made.
(B) If the sum recovered by the employee from the third person or corporation is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer
or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents less ...