On appeal from the Division of Workmen's Compensation denial of benefits under the One Per Cent Fund, R.S. 34:15-94 and R.S. 34:15-95.
On October 3, 1952 petitioner, a woman then 59 years of age, suffered a fall while in the employ of Singer Manufacturing Company. She petitioned for workmen's compensation. An award was entered on December 5, 1955, for both temporary and permanent disability. The Deputy Director found as follows:
"As to the question of permanent disability, while there is no doubt in my mind the petitioner presents an overall disability in excess of my evaluation of the disability chargeable to the respondent, the conditions from which she suffered, the underlying osteoarthritic changes in her system, more particularly the progression in the right hip, plus the arthritic changes in the lumbar area and right knee, be that as it may, because this underlying condition has become aggravated, I will award the petitioner for orthopedic and neurological, a disability of 15 per cent of total, 82 1/2 weeks at $30.00 a week, $2,475.00."
The foregoing finding followed testimony by Dr. Cardinale for petitioner and Dr. Keats for respondent. Dr. Cardinale testified that she was 40% disabled; that 20% of the disability preexisted and 20% was attributable to the accident. Dr. Keats estimated total disability at 15%, one-half preexisting, and one half chargeable to the accident. The Deputy Director made no finding as to total disability, but found 15% of total due to the accident.
Thereafter petitioner petitioned for compensation for increased disability from her employer. This matter was heard on July 1, 1957. Dr. Keats again testified for respondent. He said that petitioner was then 100% totally disabled. He attributed 50% to the right hip, lumbar area and right knee which were involved in the accident, and 50% to a calcified mass in the pelvis, probably representing calcified fibroid tumor, and osteoarthritis of the dorsal vertebrae. Dr. Cardinale testified again for the petitioner. He attributed two-thirds of total disability to the right hip, lumbar spine and right knee, and one-third to the thoracic spine, left side of the pelvis and calcification in the abdominal cavity. The Deputy Director determined that petitioner was then 100% totally disabled, that 50% was due to the accident and 50% to preexisting disability not causally related to the accident. He awarded additional compensation for 35% of total permanent disability.
Petitioner now seeks to recover compensation from the One Per Cent Fund for the 50% of total disability attributed to petitioner's preexisting condition and not charged to the employer. Petitioner alleges that the finding in the 1957 case against the Singer Manufacturing Company is conclusive that the portion of disability for which compensation was not allowed was due to preexisting conditions, the accident rendering petitioner totally disabled when added to the prior condition.
This claim was heard in the Division on January 21, 1958. The medical testimony added nothing to the evidence submitted at prior hearings. The petition was dismissed on
the ground that total disability resulted from the aggravation, activation or acceleration of a preexisting noncompensable disease or condition by the last compensable injury for which compensation from the Fund is barred under N.J.S.A. 34:15-95(b).
N.J.S.A. 34:15-95 provides, in so far as here material, as follows:
"* * * compensation payments * * * shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause; * * * provided * ...