Clapp, Burton and Artaserse. The opinion of the court was delivered by Artaserse, J.s.c. (temporarily assigned).
[31 NJSuper Page 590] The Essex County Court set aside a workmen's compensation award for temporary disability and for medical and hospital expenses allowed by the Division of Workmen's Compensation. The petitioner employee appeals from this reversal.
The facts are not in dispute. The petitioner was employed by the respondent as a laborer and on February 15, 1950, sustained an injury, arising out of and in the course of his employment with the respondent for which he required and received medical treatment. On October 25, 1950, the petitioner was awarded for said injury by the Division of Workmen's Compensation 20% of total partial permanent disability, in addition to 19 4/7 weeks for temporary disability. The last payment of compensation under the award of October 25, 1950 was made to the petitioner on about August 1, 1952. The record discloses that the petitioner suffered a relapse which required that he be confined to a hospital November 6, 1952 for eleven days and that he received physiotherapy treatment for almost seven months; that he had been under treatment continuously for about four months prior to November 6, 1952, and that about three weeks before said date he began to feel worse. The respondent was not notified immediately of the need for treatment caused by the relapse, but the petitioner filed a petition for compensation on December 26, 1952, which had been verified by him on December 17, 1952, in which he alleged that he had "suffered a relapse and is in need of further treatment." The respondent filed its answer to the employee's petition on January 13, 1953, setting forth therein that "the respondent denies that the petitioner has any increased disability and puts the petitioner to his proof."
On July 9, 1953, a hearing was had before the Division of Workmen's Compensation on said petition. The deputy director in an oral opinion decided that the petitioner had a subsequently incurring temporary increase in disability in late October, 1952, which continued for 13 weeks and which required treatment and hospitalization, all resulting from the original injury. On July 16, 1953, a determination, award and judgment of the Division of Workmen's Compensation was duly filed, whereby the petitioner was awarded 13 weeks for temporary disability and the respondent was ordered to pay for hospital and medical expenses incurred by the petitioner.
The respondent appealed to the Essex County Court, which reversed the judgment of the Division of Workmen's Compensation on the ground that the statute makes no provision for subsequent temporary disability and medical expenses where a final award had been made, relying on Sassarro v. Wright Aeronautical Corp. , 135 N.J.L. 366 (Sup. Ct. 1947), affirming 24 N.J. Misc. 57 (Com. Pl. 1946).
The single legal question involved in this appeal is whether or not an injured employee who had previously been awarded temporary disability and permanent disability can obtain compensation for temporary disability and medical expenses attendant upon a relapse where the relapse produced the temporary disability and occasioned the medical expenses and treatment but which resulted in no increase of permanent disability?
The Sassarro case is distinguishable from the instant case. There the petitioner had been awarded 20% partial permanent disability as a result of an injury to his hands, which award was fully paid but no temporary disability was awarded as no claim was made therefor. Seven months after the award, he voluntarily underwent an operation which successfully reduced his prior determined permanent disability, it being admitted that the permanent disability continued to exist but that there was no increase in disability of any kind prior to the operation. Thereafter the petitioner sought medical expenses and an award for temporary disability and filed a petition which recited that it was "filed for recurrent temporary disability and reimbursement of medical expenses incurred by reason of [an] operation performed upon petitioner's hands." The Sassarro petition was treated by both counsel and the court as an original claim petition and not a proceeding for review of a formal award under R.S. 34:15-27. This view was manifestly correct in that there was no disability increase attributable to the injury which would justify reopening under R.S. 34:15-27. There was nothing to modify. This position becomes evident when it is realized that the original award for partial permanent disability had been paid in full by the respondent and even though the
disability had diminished because of the operation, the money so paid to the employee pursuant to the award, could not be recovered by the employer as there is no provision in the Workmen's Compensation Act for such return. Sassarro v. Wright Aeronautical Corp., supra, page 367. The singleness of the Sassarro decision becomes obvious when it is considered that if the partial permanent disability had not been paid, the original award could have been modified under R.S. 34:15-27. In the light of the facts in the Sassarro case the decision there seems entirely sound. In Ducasse v. Walworth Manufacturing Co. , 1 N.J. Super. 77 (App. Div. 1948), the petitioner's condition became worse almost immediately after the original award of compensation for both temporary and permanent disability, which was climaxed by an operation the results of which were not beneficial. The court there held he was entitled to be compensated for his increased disability stemming from the original injury, and that irrespective of prior awards for disability, additional compensation may be awarded where the disability is proved to have increased. Janvari v. Peter Schweitzer Co. , 13 N.J. Super. 286 (Cty. Ct. 1951), affirmed 21 N.J. Super. 248 (App. Div. 1952). See also Lazzio v. Primo Silk Co. , 114 N.J.L. 450 (Sup. Ct. 1935), affirmed 115 N.J.L. 506 (E. & A. 1935) where increased permanent disability compensation was allowed even though there was no increased disability before the treatment which resulted in the employee's death.
In the instant case it is undisputed that the petitioner had suffered a relapse resulting in temporary disability and then underwent medical treatment which successfully returned him to his prior determined and fixed 20% partial permanent status. Such an increase in disability, even though temporary, rather than permanent, brings petitioner within R.S. 34:15-27 which he has invoked. A relapse into 100% disability, albeit temporary, clearly falls within the statute's words, "on the ground that the incapacity of the injured employee has subsequently increased." It should be observed that this statute uses the words "disability" and "incapacity" synonymously. See the sentence following the
one above quoted, and also see Drake v. C. V. Hill & Co. , 117 N.J.L. 290, 292 (E. & A. 1936), where Justice Heher uses both words with identical meaning. But see Calabria v. Liberty Mutual Insurance Co. , 4 N.J. 64 (Sup. Ct. 1950), where the terms are differentiated in a chrome poison case, and Safety Insulated Wire & Cable Co. v. Court of Common Pleas of Hudson , 90 N.J.L. 114, 115 (Sup. Ct. 1917). The words "disability" and "incapacity" in their usual import cover temporary as well as permanent disability or incapacity, i.e. , the incapacity to perform labor. This view, of course, rejects the dicta in the Sassarro case, 24 N.J. Misc. 57, 59, supra , which is merely a concession on the part of both counsel in that case to limit the meaning of "incapacity" and "disability" to permanent incapacity and permanent disability. Why construe narrowly a statute which courts construe liberally? A less liberal rule applied to claims arising under our Workmen's Compensation Act would do violence to the beneficent purpose intended to ...