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Bisonic v. Halsey Packard Inc.

Decided: November 19, 1959.

ARTHUR BISONIC, PETITIONER-RESPONDENT,
v.
HALSEY PACKARD, INC., RESPONDENT-APPELLANT



Conklin, J.c.c.

Conklin

The petitioner, Arthur Bisonic, while in the employ of the respondent, Halsey Packard, Inc., suffered an inguinal hernia on September 9, 1956. The injury was incurred while petitioner was acting in his capacity as an automobile salesman when he attempted to push an automobile away from a wall so that he could show it to a potential customer.

Petitioner made application for an informal hearing before the Workmen's Compensation Division and was offered the

opportunity to submit to surgical repair of the hernia or to accept compensation to the extent of 5% of total, or 27 1/2 weeks at $30 a week, in lieu of surgery. On January 10, 1957 petitioner accepted the tendered compensation rather than the surgical repair, his decision apparently influenced by a prior history of serious surgical procedures on his eyes, gall bladder, and another hernia, and also the failure of respondent to authorize petitioner's family physician, Dr. Charles H. Evans, to perform the surgery.

After the informal hearing, petitioner suffered increasing physical discomfort as the result of the hernia, and on the advice of Dr. Evans, petitioner was admitted to Orange Memorial Hospital on February 13, 1957, and an operation was there performed on February 15 by Dr. Evans for the repair of the hernia. During the course of the operation, which lasted approximately three hours, Dr. Evans repaired several other hernias, including a large incisional hernia which had resulted from the gall bladder operation six or eight years previously. The facts up to this point are undisputed. The respondent concedes that petitioner suffered an inguinal hernia arising out of and in the course of his employment.

Petitioner now by way of a formal hearing before the Workmen's Compensation Division seeks a formal award of compensation for this injury and the corrective operation and hospitalization. Petitioner claims that he suffered a ventricular failure as the result of the operation which is causally and proximately related to the accident of September 9, 1956, for which he is further entitled to compensation.

Respondent, on the other hand, contends that the present disability, if any, is not causally related to the accident; that the length of the operation was not proximately caused from conditions flowing from the accident; that the petitioner has failed to prove by a preponderance of the credible testimony that he suffered a "heart failure" by reason of the operation; that he had an "asymptomatic" heart condition at the time of the accident in September; and that

his actions so prejudiced the rights of the respondent as to warrant a denial of any award for permanent disability as to other conditions.

At the formal hearing below, the Deputy Director found that petitioner's present disability was causally related to the accident of September 9, 1956, and awarded compensation in the amount of 25% of total, plus the cost of the corrective surgery and subsequent treatment for the heart condition. Against this amount a credit was allowed for the payments made pursuant to the compromise agreement.

An orderly presentation and disposition of the issues presented in this case would seem to require that the court consider initially the last of respondent's defenses set out above; namely, that petitioner by his actions so prejudiced the rights of the respondent as to warrant a denial of any award, even if a disability, otherwise compensable, was found to exist. With respect to this contention, the effect of the informal award approved by the Division on any subsequent formal hearing must be determined, along with refusal of petitioner to submit to surgery by anyone other than Dr. Evans, his own family physician.

Petitioner's brief and the Deputy Director's findings indicate that the effect of the award made at the informal hearing on any future formal hearing was disputed at the hearing below. Respondent claimed that the informal agreement operated as a bar to recovery in the present proceeding. The Deputy Director concluded, however, that "the petitioner in the instant case is not barred from a formal determination of his legal rights pursuant to the provisions of R.S. 34:15-7, et seq. "; and, in any event, "the petitioner is not precluded from a review of any award on the ground that his incapacity has subsequently increased. N.J.S.A. 34:15-27."

On appeal, respondent again presents this same contention, indicating that he is not in agreement with the Deputy Director on this matter; therefore, it will be briefly considered by the court.

N.J.S.A. 34:15-22 provides in part:

"No agreement between an employee and his employer or insurance carrier for compensation shall operate as a bar to the formal determination of any controversy, unless such agreement has been approved by the commissioner, the director, a deputy director, or a ...


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