Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
[32 NJSuper Page 407] Appeal is taken from a judgment of the county court affirming a judgment of a deputy director of the Division of Workmen's Compensation, Department of Labor and Industry, wherein appellant was directed to furnish petitioner medical treatment in an attempt to cure a draining sinus in the back resulting from an occupational accidental injury.
Appellant contends that the judgment should be reversed upon two grounds: (1) after there has been an adjudication of the permanent disability resulting from an industrial accident and there has been no worsening of the employee's physical condition, there is no provision in the Workmen's Compensation Act which justifies an order requiring the respondent to furnish additional medical treatment; and (2) the principle of res judicata bars the petitioner from relitigating a question which either was, or could have been, raised in the earlier proceedings.
Judge Drewen of the County Court has comprehensively analyzed the record and we liberally paraphrase his opinion. A chronological statement is in order. On July 29, 1942 petitioner was injured in an accident arising out of and in the course of his employment. The original petition was filed February 5, 1943, and by determination made June 11, 1943 petitioner was awarded compensation for temporary and permanent disability, of 33 1/3% of total. On December 7, 1943 a second petition was filed seeking additional compensation for both temporary and permanent disability. Hearing was held December 10, 1945; and by determination dated December 20, 1945 it was ordered that compensation be paid to petitioner 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. Both petitions requested medical treatments. 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. No medical treatments were requested in this petition.
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."
The deputy director determined that petitioner was entitled to the medical treatment sought, including surgery, and in specified alternatives ordered respondent to provide accordingly. The County Court concluded likewise.
Appellant'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. That once the disability resulting from a compensable accident has become permanent in the sense that no further improvement can reasonably be anticipated, the obligation of an employer to pay temporary disability benefits ceases. Therefore, if there is no reasonable basis for anticipating improvement in the petitioner's physical condition and the effects of the accident have become permanent, furnishing further medical treatment is not an obligation imposed upon an employer by the Workmen's Compensation Act. In other words, once the permanent disability has become fixed and there can be no worsening or betterment of the employee's condition, no further benefits for temporary disability are required, for in the absence of a change in circumstance, only one period of temporary disability was contemplated by the Legislature. Sassarro v. Wright Aeronautical Corp. , 135 N.J.L. 366 (Sup. Ct. 1947).
The record shows that petitioner suffers from a draining sinus of the back and the wound opens and closes periodically, as often as once a week. Petitioner states the pain is especially intense just before the wound opens, relief follows only after it opens and discharges. Appellant says that petitioner admits that the wound has been occasionally opening and closing ever since the time of the first operation; that there has been no increase in petitioner's permanent disability since the February 9, 1951 determination, and for present purposes this may be taken as true.
It is clear that in none of the three prior determinations was petitioner's right to medical treatment questioned. Similarly, appellant nowhere alleges that any of the earlier petitions sought medical treatment for the condition described
in paragraph 42 of the present petition. In essence, then, the position taken is that if a petitioner does not demand medical treatment prior to a determination for a disability which has become permanent, an employer is no longer obliged to provide it, once the determination has been rendered; that since the first two petitions sought medical treatment and the third petition could have asserted the need for such treatment but did not, the present action ...