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Tuyl v. Federal Shipbuilding and Dry Dock Co.

Decided: January 7, 1954.

WILLIAM VAN TUYL, PETITIONER-APPELLEE,
v.
FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLANT



On workmen's compensation appeal.

Drewen, J.c.c.

Drewen

This is an appeal from a determination in the Bureau that respondent provide certain medical treatment for petitioner. The question submitted, strictly speaking, is one of novel impression. The main contention is that prior determinations are a legal bar to the aforementioned award. A chronological statement is therefore in order. It is undisputed that on July 29, 1942 petitioner was injured in an accident arising out of and in the course of his employment. Original petition was filed February 5, 1943, and by determination thereon made June 11, 1943 it was ordered that petitioner be compensated for 20 weeks' temporary disability and for permanent disability of 33-1/3% of total. It appears that on December 7, 1943, a second petition was filed seeking additional compensation for both temporary and permanent disability. Neither this petition nor a copy has been furnished the court, but respondent alleges that the second petition also asked for medical treatment. Hearing thereon was had December 10, 1945 and by determination of December 20, 1945 it was ordered that compensation be paid for permanent disability of 66-2/3% of total, with credit for payments previously made, and for temporary disability covering the period from July 28, 1943 to December 18, 1944.

In the determination on the second petition it is stated:

"Petitioner, William Van Tuyl, testified that in June of 1943 his condition became such that he was unable to work, he felt sort of paralyzed, he went to Hasbrouck Heights Hospital and subsequently in July, 1943 was operated on at the said hospital; that subsequently he was operated on by Dr. Weigle at the Muhlenberg Hospital and he was treated by Dr. Weigle until the 18th day of December, 1944."

Assuming, as respondent alleges, that medical treatment was sought in the petition of December 7, 1943, it would seem

that respondent provided it over a period extending well past the date petition was filed. The determination recites nothing at all about medical treatment having been sought in the petition. The statement is: "The petition in this cause was filed for additional compensation for both temporary and permanent disability." On April 10, 1950 a third petition was filed, alleging an increase in disability since December 20, 1945. On February 9, 1951, after hearing, the petition was dismissed for want of proof.

The present petition was filed March 31, 1952. Paragraph 42 reads:

"Petitioner has a wound in his back resulting from his accident of July 29, 1942, which opens up from time to time, discharging pus. From time to time petitioner collapses from pain. He collapsed September 9, 1951 and was advised by his doctor that he needs further medical treatment and perhaps an operation. Respondent has refused this request."

After hearing the matter the deputy director has determined that petitioner is entitled to the medical treatment sought, including surgery, and in specified alternatives has ordered respondent to provide accordingly.

Respondent's position upon the question of the effect to be given the prior determinations seems to be as follows: petitioner's present condition is viewed as one of long standing and continuously unchanged from and after the filing of the first petition. It should be noted that petitioner suffers from a draining sinus of the back; that the wound opens and closes periodically, as often as once a week; that petitioner states the pain is especially intense just before the wound opens, relief ensuing only after it opens and discharges. Respondent says that petitioner admits that the wound has been occasionally opening and closing ever since the time of the first operation. And respondent states further, "It is not claimed, nor does the ...


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