On appeal from the Middlesex County Court.
For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis and Proctor. For reversal -- Justice Burling. Burling, J. (dissenting).
Petitioner sought to recover compensation from the "One Per Cent Fund" (R.S. 34:15-94 et seq.) upon the thesis that a compensable injury suffered in his last employment, superimposed upon prior disability, resulted in total incapacity. The Deputy Director found petitioner had not proved his claim and the Commissioner of Labor and Industry dismissed the petition. The County Court affirmed. On our motion we certified petitioner's further appeal before the Appellate Division acted upon it. As will hereafter appear, there were further proceedings in the labor department which led to a delay in the determination of this appeal. After those proceedings were concluded, both parties requested a decision without further argument.
On September 18, 1951 petitioner met with an industrial accident resulting in a herniated disc and on March 19, 1953 he was awarded 12 1/2% of total permanent disability against the employer, Kramer Brothers Freight Lines, Inc. On October 20, 1955, upon a further petition, he received an additional 5% of total. Prior to the accident in question, petitioner was partially disabled by reason of both another accident and some unrelated conditions. It is perfectly clear that the condition which rendered petitioner totally disabled is a bilateral or saddle thrombophlebitis in the lower extremities, the onset of which occurred in the middle of 1953.
Petitioner clearly was totally disabled at the time of the second petition against Kramer Brothers. The serious nature
of the thrombophlebitis, considered against the additional award of 5% on the second petition, sparked the question whether the thrombophlebitis had been found in that proceeding to be unrelated to the last accident or whether it had been undervalued by the Deputy Director. Indeed the limited circumstances revealed in the record as first presented to us suggested the possibility that the second award was in fact the product of a settlement disguised as a trial. The record of the proceedings against the fund supported that possibility because counsel who represented petitioner in that proceeding as well as in the proceedings against Kramer Bros. said:
"But it showed at that time the injured man was in very bad shape and was sort of tentatively understood that he should be awarded the 1% disability because here is a man so badly hurt he cannot get paid and apparently they wouldn't give him 5% more for being hurt."
At the oral argument before us the same counsel for petitioner, in response to a direct inquiry, asserted the award of 5% was in fact a settlement made with the understanding that the One Per Cent Fund would be visited with the burden, and this despite the palpable fraud upon the Fund that such an understanding between employee and employer would plainly accomplish. We directed further argument with respect to the binding effect of the compensation award in favor of or against the One Per Cent Fund. In the meantime the transcript of the second proceeding against Kramer Bros. became available and was made part of the record before us. In his supplemental brief, counsel for petitioner said:
"Referring to this record we find there was a very limited presentation of petitioner's case by his counsel. It is apparent and counsel here state that the determination there was a settlement. * * *
During the negotiations which proceeded [ sic ] the hearing, it was agreed by all parties, including the deputy commissioner involved, that petitioner would next proceed against the Fund. * * *"
The record of the second proceeding does not support the quoted statement. In fact the Deputy Director in that proceeding found:
"After carefully listening to all of the doctors testifying here today, there is no doubt and I must so find that the petitioner is now totally and permanently disabled; that this total and permanent disability was brought about because of many intervening conditions from which the petitioner suffered, most of which are in no was related to the accident of September 18, 1951, either by way of causation, aggravation or exacerbation.
I feel I am justified in making such a finding in spite of the paucity of proof and poor presentation on behalf of the petitioner of this case."
The testimony in that proceeding shows that the relation of the thrombophlebitis to the Kramer Bros. accident was litigated. In that hearing, Dr. Jack Blumberg and Dr. S. Wolf Emmer, called out of turn for respondent and before petitioner's witness Dr. Samuel L. Spinner took the stand, testified the thrombophlebitis was unrelated to the accident. Dr. Spinner mentioned the thrombophlebitis on direct examination in a way to suggest what was developed on cross, to wit, the absence of any causal connection.
There can be no doubt that in the proceeding against Kramer Bros. the thrombophlebitis was adjudged not to be related to the accident, and it having originated after the accident, the finding negated a basis for a claim against the One Per Cent Fund. The finding of course coincides with the finding made by the Commissioner and the County Court in the proceedings before us for review. We are not disposed to overturn that finding of fact, and hence need not consider the question whether the finding against petitioner in the proceeding against the employer forecloses as a matter of law a contrary assertion against the Fund on the principles of either res judicata or collateral estoppel.
When the issue of "settlement" and its impact upon the claim against the Fund was raised at the oral argument before us, the suggestion was made that the Kramer Bros. proceeding might be reopened to the end that the burden
fall where it properly belongs if the thrombophlebitis resulted from the accident. Petitioner then sought to reopen, and being advised of that effort, we withheld our decision of this case. What then happened should be recounted, although our determination does not depend upon it. Upon that further hearing, counsel for petitioner did not testify in support of his assertion that the 5% award was the product of a settlement. In fact, he stayed away from the hearing while representatives of Kramer Bros. and the Deputy Director who made the determination under attack were present, prepared to testify. It further appeared that counsel for petitioner, at the time of the second petition against Kramer Bros., had in his file reports of Drs. Arthur Colley and E. V. Robertson indicating an opinion that the thrombophlebitis was related to the accident, but counsel did not call them in that proceeding despite the fact that his petition squarely asserted a causal connection. He, however, did call them in the proceeding against the Fund in an effort to establish that very connection.
The Deputy Director refused to reopen the Kramer Bros. proceedings on several grounds. He dealt exhaustively with the claim of a settlement and found it to be false. He found further that the issue of the relationship of the thrombophlebitis to the accident was pleaded, litigated and in fact determined adversely to petitioner in the Kramer Bros. matter, a finding we also made above. Lastly, the Deputy considered the evidence he heard anew with respect to the issue of causal connection. It appears that the thesis of Dr. Colley and Dr. Robertson was that the operation of December 1951 addressed to the herniated disc introduced a trauma affecting the nerve fibers connected to the spinal cord which in turn affected the well-being of the blood vessels in the lower extremities. Against this view, there was an array of expert testimony (including that of the operating surgeon and attending orthopedic specialist) to the effect that the thrombophlebitis did not manifest itself during the post-operative period in which it would have appeared on
petitioner's thesis, but rather followed and was referable to a lengthy period of hospitalization in 1953 for a urological condition unrelated to the accident or was attributable to that condition itself. The Deputy found the respondent's evidence to be more persuasive, thus adding another factual finding against petitioner. No appeal was prosecuted from the judgment entered on those findings.
The judgment is accordingly affirmed.
BURLING, J. (dissenting).
Because the majority in this case denies the existence of a causal relationship between appellant's thrombophlebitis and the last compensable accident suffered by him on September 18, 1951, while he was in the employ of Kramer Brothers Freight Lines, Inc., I find I must dissent from their views. To my mind, the record in this case discloses that such a relationship exists, and in so holding I do not believe myself to be at variance with either the Commissioner of Labor or the County Court below, or with the decision of the Deputy Director rendered on the occasion of the first reopening of the award against Kramer Brothers. Moreover I do not perceive any other bar to a claim against the One Per Cent Fund and hence I would reverse the direction of dismissal entered against appellant in the County Court.
There is no substantial dispute concerning the fact that the appellant is presently totally and permanently disabled. The question is to what, if any, extent the One Per Cent Fund may be resorted to for his injuries.
The appellant's medical and workmen's compensation injury history supplies the essential background against which the determination in the instant cause must be made.
Prior to sustaining any compensable industrial accident the appellant suffered from a left inguinal hernia condition. A herniotomy was performed to correct this condition on August 23, 1950. The appellant was also afflicted with an unspecified congenital defect. While this latter affliction formed one of the bases upon which the Deputy Director
below rested his finding of present total permanent disability, the only reference thereto in the record stems from a recitation of facts in the appellant's ...