Goldmann, Conford and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal by the respondent, Lambrecht Foods Company, from a judgment of the Hudson County Court finding that the petitioner Herman Wexler was disabled to the extent of 100% total and permanent disability, as the result of a heart attack suffered by him on August 27, 1957, while in the employ of the respondent, and holding the entire amount assessable against respondent. Respondent does not contest the determination of 100% total permanent disability, but objects to the adjudication of liability for the total against itself.
The Division of Workmen's Compensation had also found that the petitioner was totally and permanently disabled, but concluded that there was reasonably and properly attributable to the compensable accident of August 27, 1957 permanent disability of only 15% of total. It found that there were pre-existing disabilities "definite and measurable in nature and extent," which in combination with the later accident created a condition of total and permanent disability. Although no award was made against the One Per Cent Fund, the finding laid the basis for such a claim to be made subsequently by the petitioner.
The hearing in the Division was in Newark and the determination was made on January 6, 1959. The petitioner made timely appeal therefrom on February 5, 1959 to the Essex County Court, which later transferred the matter, on its own motion, by order of October 1, 1959 to the Hudson County Court, because the accident occurred in Hudson County.
Among other points, the respondent argues on this appeal, as it did in the Hudson County Court, that the Hudson County Court did not have jurisdiction to hear the appeal. We concur in the opinion of the Hudson County Court that it did have jurisdiction. Petitioner suffered his compensable heart attack in Jersey City, Hudson County, while performing his duties as an employee of respondent. In an appeal from the determination of the Division of
Workmen's Compensation, N.J.S.A. 34:15-66 provides, inter alia that "Either party may appeal * * * to the County Court of the county in which the accident occurred * * * by filing with the secretary of the division, and with the clerk of such county, a notice of appeal * * * within 45 days." (Emphasis supplied)
In Hart v. Kimball , 122 N.J.L. 217 (Sup. Ct. 1939), it was held that pursuant to the Removal of Causes Act, R.S. 2:26-60, the court had the power to transfer a workmen's compensation appeal to the proper county, where the appeal was inadvertently taken from the Workmen's Compensation Bureau to a court of a county other than that in which the accident occurred. The court said, at p. 219:
"The obvious purpose of the statute providing for the removal of causes was to prevent the loss of a hearing by a litigant who took his case to a court which could not deal with the subject matter."
R.S. 2:26-20 has been repealed along with other statutes dealing with procedure in the courts. In its place R.R. 1:27 D now covers transfer of causes with like effect. In re Old Colony Coal Company , 49 N.J. Super. 117, 124 (App. Div. 1958); and Valonis v. Mayor & Tp. Committee of Cinnaminson , 54 N.J. Super. 567, 569 (App. Div. 1959). Hence, the transfer from the Essex County Court was properly made to the Hudson County Court, and it was correct to proceed as if the appeal had originally been taken to the latter court.
No contention is made on this appeal that the petitioner did not suffer a compensable accident, when he suffered his heart attack on August 27, 1957. No argument is made that, as a consequence of that compensable accident, he is not now totally and permanently disabled. As noted above, the contest is rather centered on the extent of the respondent's obligation to pay that total disability. The respondent argues that it is liable for only 15% of the total disability, as found by the deputy director, and that the
remainder is referable to the One Per Cent Fund under N.J.S.A. 34:15-95. The petitioner urges that the respondent must properly pay 100% of his total disability, as determined by the County Court.
We observe a procedural difficulty in making any binding determination as to the applicability of the instant situation to the provisions of the One Per Cent Fund law. This case is not a proceeding against the Fund and the Fund is not represented herein by counsel charged with presenting evidence or argument against this responsibility. N.J.S.A. 34:15-95.1 provides in part:
"Applications for benefits under this act shall be made by a verified petition filed in duplicate within two years after the last payment of compensation by the employer * * *. The decision, however, as to whether the petitioner shall or shall not be admitted to the benefits shall be rendered by the said Commissioner of Labor. * * *."
Thus, the employee's right to apply for the benefits of the One Per Cent Fund law within that extended period makes it unnecessary to determine his right thereto when his compensation case is heard.
However, it was held in Walker v. Albright , 119 N.J.L. 285 (Sup. Ct. 1938), that the Commissioner of Labor is not a necessary formal party to the original workmen's compensation proceeding, for purposes of making a determination of total disability in such proceeding res adjudicata as to that fact in a subsequent proceeding by the workman against the Fund. It was there stated that he is " ex officio " a party in every proceeding, acting through his referees and deputies. The deputy director's findings here inferentially hold the Fund answerable, without expressly stating so. This is implicit in his determination that petitioner is totally disabled, but the employer is liable for only 15% thereof.
Yet in actual practice, as here, the applicability of the One Per Cent Fund law is generally not expressly presented to or passed upon by the deputy director or by the County
Court in the workmen's compensation hearing. See Administrative Directive No. 9 of the Division of Workmen's Compensation which provides:
"Applications for benefits for the Second Injury Fund shall not be filed earlier than 6 months prior to the date when the final payment of compensation is payable by the employer for the subsequent permanent injury which, in combination with the previous partial permanent disabilities, is asserted as having resulted in total disability."
A proceeding against the Fund is thus contemplated to follow the compensation proceeding against the employer. See also Voessler v. Palm Fetchteler & Co. , 120 N.J.L. 553 (Sup. Ct. 1938), affirmed opinion below 122 N.J.L. 434 (E. & A. 1939). It would seem essential that in a case such as this, where the argument addressed to the deputy director by the respondent was for a ruling calculated to induce a proceeding against the Fund by the workman, the Attorney General should be brought into the case at the outset. It is clear that, in substance, ...