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Tluzek v. Federal Leather Co.

Decided: January 4, 1957.

LEONARD TLUZEK, PETITIONER-APPELLANT,
v.
FEDERAL LEATHER COMPANY, RESPONDENT-APPELLEE



On appeal from the Division of Workmen's Compensation.

Drewen, J.c.c.

Drewen

Petitioner-appellant suffered a partial crushing of his left hand as the result of its being caught in a pressure roller attended by him at the time as an employee in the plant of respondent-appellee. The accident occurred August 24, 1955. Respondent paid all hospital and medical expenses, and temporary compensation was paid until December 5, 1955, when petitioner returned to work. During the period covered by temporary compensation payments and before the return to work, the formal claim petition was filed on November 15, 1955. Following the filing of the claim petition the normal procedural steps were taken toward bringing the matter to issue. Additionally, informal hearing was listed and continued, medical reports were received, pretrial conference was listed and continued, all of which brought events to February 17, 1956, the continued date of a pretrial conference.

On February 23, 1956 respondent gave notice of the amendment of its answer to claim-petition so as to admit 40% of permanent disability in the left hand. On the same date (February 23, 1956) respondent delivered its check for payment to petitioner of the amount then due on the basis of the disability as thus admitted. On April 6, 1956 the

first formal hearing was listed, the same being adjourned because of the illness of counsel. On April 20, 1956, and following extensive argument, the deputy director allowed the amendment of the answer to claim-petition and ruled that the tender of 40% of permanent disability in the left hand had been made within a reasonable time and in accordance with the statute (infra). N.J.S.A. 34:15-64 of the Workmen's Compensation Act provides:

"* * * 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 fee 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 first question presented by the appeal is whether the 40% tender was made "at a reasonable time, prior to any hearing" within the statutory intent and meaning. The period material to the decision of this question is that beginning February 23, 1956, when the notice of amendment was given and the first payment made pursuant to tender, and ending April 6, 1956, when the first formal hearing was listed, a period of 43 days.

From page 1 to page 70 of the transcript there runs a somewhat tangled mixture of argument, colloquy, contention and agreement bearing on the particular question now dealt with, and which is the only record brought here on the appeal that has relation to the question. To be gleaned from it is a relevant schedule or calendar of stipulated events and dates, and upon which the briefs of both counsel are based. I have examined pages 1 to 70 of the transcript with care and have considered with like attention all dates and events that may be regarded in the particular stated as being in agreement between the parties. I find nothing that warrants any view of the matter but that the "hearing" in the statutory sense occurred upon the listing thereof for April 6, 1956. Nor do I find any basis for the conclusion that there was any date, condition or occurrence earlier than February 25, 1956 (when respondent gave notice of the amendment and

made the initial payment on account of the admitted disability), to indicate that the tender should by legal requirement have been made before it was made. What does the statute mean by "any hearing"? Counsel for petitioner is at great pains to show that the earlier procedural meetings for pretrial or informal hearing must be taken, in one instance or another, as presenting a hearing in the statutory sense. It is my opinion that the very nature of a pretrial conference, as well as of an informal hearing, in the design and scope thereof, prohibits any such conclusion as that which counsel for petitioner urges. "Any hearing," as I understand it, must be taken to mean any final hearing. From the contrary view it would follow that tender might be made exigent and called for while the issue of disability was still inconclusive. Clarity and definiteness for all concerned is better served by the view that "hearing" means a contested session, one that in itself is final in the sense that it is determinative of the issues.

The term "hearing" as it appears in the statute does not, in my opinion, refer to any preliminary or indeterminate meeting or conference of the parties for the purpose of facilitating the arrival at a preliminary result or a result attainable without trial. In keeping with this statement, I believe to be the pronouncements of our appellate courts. As stated by Justice Heher in Handlon v. Town of Belleville , 4 N.J. 99, 105 (1950):

"The requirement of a 'hearing' has reference to the tradition of judicial proceedings in which evidence is received and weighed by the trier of the facts and the issue determined uninfluenced by extraneous considerations which might not be ...


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