For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Proctor and Hall, JJ., join in this concurring opinion. Weintraub, C.J., and Proctor and Hall, JJ., concurring in result.
This is a workmen's compensation case. The sole issue is the propriety of the counsel fee allowed to petitioner's attorney.
Petitioner suffered a compensable injury to his right arm on September 18, 1956. Compensation for temporary disability was duly and regularly paid for a period of 43 weeks, until July 15, 1957. Respondent's orthopedic specialist examined Coponi on June 18 and shortly thereafter (the exact date not appearing in the record) submitted a report containing his evaluation of permanent disability. On July 19 payment of compensation for permanent disability was begun by check bearing the designation "permanent compensation." Such checks continued regularly without cessation throughout the proceedings. They did not specify the
basis or percentage of permanent loss of the arm on which the payments were being made. Nor were the checks accompanied by any letter furnishing such information.
Petitioner resumed working on August 5. Apparently there was some disagreement as to when the period of temporary disability ended, because compensation benefits therefor were terminated on July 15 and respondent asserted in its answer to Coponi's subsequent formal petition for compensation that he was able to return to work on July 16. At the later settlement hearing, it was agreed that 2-6/7 additional weeks were due. That fact, however, plays no material part in the controversy to be resolved.
The formal petition was filed on July 23, 1957. An answer conceding that Coponi had suffered a compensable accident was signed on August 7 and filed on August 16. Question 11 on the form and the answer are:
"11. Nature of injury and resultant permanent disability. 60% of right arm."
Thereafter, following a pretrial conference, the petition was amended to include a claim for neurological disability.
On November 22 the extent of petitioner's permanent disability was fixed by consent of the parties, as follows: 70% loss of the right arm, 5% of total on account of neurological dysfunction, and 2 1/2% of total for abdominal scarring due to two skin graft operations. The Deputy Director approved the settlement and entered judgment awarding compensation for such disability for a total of 251 1/4 weeks at $30 per week or $7,537.50, less the payments already made.
With respect to counsel fee, the Deputy Director concluded that the statement in respondent's answer that the "resultant permanent disability" was "60% of right arm" coupled with the delivery of the first of the checks to which reference has been made, constituted an offer to pay compensation on that basis. Accordingly, he held that under
N.J.S.A. 34:15-64 the fee should be allowed only on the part of the award which exceeded 60% loss of the arm, i.e., on the compensation representing the additional 10% impairment and the 7 1/2% of total permanent disability for the other conditions. These benefits totalled $2,137.50, and if that sum alone controlled, no fee in excess of 20% could be granted. N.J.S.A. ...