On appeal. Determination of facts and judgment.
Petitioner suffered a compensable accident, of which the respondent had notice August 20, 1952, and through his attorney he filed a petition on March 4, 1954. The respondent answered that the petitioner was compelled to stop work because of the injury, but that respondent did not know when the man would be able to return to work, and further stated that permanent disability was in question at the time. Petitioner was treated by the plant physician and treated or seen by about ten other doctors.
On May 3, 1954 it was ordered by the Deputy Director that the case be postponed for two months, during which time the petitioner was to submit to certain treatment; and the hearing was held on July 19, 1954, which is about two years from the accident, and an award of 450 weeks, with additional continuous benefits under R.S. 34:15-12(b), was made by the Deputy Commissioner, but he refused to award a reasonable fee to the petitioner's attorney under his construction of the statute which was considered by the Supreme Court in the case of Haberberger v. Myer , 4 N.J. 116 (1949), but which later was amended. Under the old statute the respondent could wait until immediately prior to any hearing and then diminish or entirely defeat the award of counsel fees by making an offer of settlement immediately prior to the hearing. However, the statute has been amended to read as follows:
"* * * When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid, the reasonable allowance for attorney fees shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid."
The amended statute differs from the statute considered in Haberberger v. Myer in that the offer or tender must be in good faith and the offer, tender or payment must be made at a reasonable time prior to any hearing. This amendment is obviously intended to relieve the attorney from the effects of the old statute as decided in Haberberger v. Myer. It is true that the Compensation Act must be liberally construed in favor of the working man, but it is plain that the Legislature intended that the amendment should be partly, at least, for the relief of the attorney appearing for the petitioner, and by using the words "at a reasonable time," the Legislature undoubtedly had in mind the usual construction of this phrase as applied to the person affected by the offer, tender or payment.
The purpose of the amendment is to avoid having an attorney make unnecessary preparation and give unnecessary attention to a workman's case when the respondent, by making an offer, tender or payment, can avoid such waste of time. This requires that the offer, tender or payment must be made at such a time prior to the hearing that the attorney will have a reasonable opportunity to learn about it; otherwise, the attorneys who practice in the Compensation Bureau would be back where they were before the amendment was enacted.
From a careful study of the record I find that the respondent paid temporary disability up to and including July 8, 1954, and on Thursday preceding the hearing of Monday, July 19, 1954, Mr. Diehl, the employment manager, approached him in the absence of the attorneys and handed him a check for $12.86, and said it was the last of his temporary. There was nothing on the check to indicate its purpose.
Mr. Diehl also handed him another check and said it was the beginning of 80% of permanent disability and this was the first check for $30. The check is dated July 15, 1954 and states, "Compensation for week. First week of 440 weeks of permanent compensation." When petitioner was handed these checks he said nothing, but on Friday he discussed the matter with his attorney over the telephone. He did not
cash the checks, but brought them to court on Monday and they were received in evidence. It was admitted that the check for $12.86 carried petitioner's temporary up to July 8, 1954.
On the medical side, Dr. Cardinale testified for the petitioner and said he was totally disabled permanently 100%, which consisted of orthopedic disability, complicated by a neurosis. Dr. Keats, for respondent, did not contradict the overall testimony of Dr. Cardinale of 100% disability, but Dr. Keats stated that he, Dr. Keats, was not competent to testify as to the neurosis. By consent, the report of Dr. Boehm that the man was totally disabled was offered in evidence. The attorneys also stipulated that if Dr. Blumberg ...