For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.
This is a workmen's compensation case arising out of an alleged May 26, 1952 accident. On January 31, 1955 the Deputy Director in his determinations found that petitioner-employee had suffered a compensable accident which caused lumbosacral strain and awarded compensation. Concededly within time, employee filed a notice of appeal from so much of the judgment of the Division of Workmen's Compensation as "awarded compensation for temporary disability for 8-5/7 weeks and for a partial-permanent disability of 10%." The employer did not appeal. N.J.S.A. 34:15-66; R.R. 5:2-5(a); R.R. 1:3-2.
Thereafter, before the appeal was heard, the County Court remanded the cause to the Division directing the Deputy Director to describe his "specific findings as to the nature and extent of the petitioner's permanent disability." Supplemental Findings of Facts dated November 23, 1955 were accordingly prepared and returned to the court. Before
the County Court could hear argument, however, the employee's attorney informed the court that Quiles had undergone an operation for the removal of a herniated disc.
The case was again remanded to the Division of Workmen's Compensation by order dated January 13, 1956. After several hearings culminating in supplemental determinations filed on September 4, 1958, the Deputy Director stated, inter alia:
"After a careful consideration of all the evidence, I am constrained to find that the injury sustained by the petitioner on May 24, 1952, due to a compensable accident in the respondent's employ, was a herniated disc and not merely a lumbo-sacral strain, as determined at the earlier trial; and that the said injury required subsequent surgical repair, consisting of a laminectomy for the removal of the herniated nucleus pulposus at the level of L-4 and L-5 on the left side, plus a spinal fusion."
He made awards of additional amounts for temporary disability, medical and counsel fees and an increase of permanent disability from 10% to 35%. Neither petitioner nor employer gave notice of appeal from these additional awards.
During the spring of 1959, employee's attorney applied by letter to the County Court for a hearing date of his original appeal, taking the view that it covered the 1958 determination as well and desiring to challenge the adequacy of the award there made. At first, the court inclined toward the view that its order of January 13, 1956 (the second remand) had divested the court of its jurisdiction over the original appeal and that consequently there was no cause pending before the court on which action could be taken. Thereafter, upon motion made by the employee to have a hearing date set and after oral argument, the County Court held in favor of the employee's contention. In a letter opinion the court stated:
"The court has conducted its own research in this matter and is satisfied that under the present status of the rules and the decisions
in this State, until there is a final judgment in this appeal it has not been disposed of and the Remand Order does not deprive this court of jurisdiction. The court refers to the decision of the Superior Court, App. Div., Francis, J.A.D., Grogan v. William J. Scully, Inc., 42 N.J. Super. 174, p. 178 under point 4. The court is satisfied that this court does have jurisdiction and that the petitioner-appellant is entitled to have this appeal heard in this court."
Accordingly, the County Court proceeded to hear the appeal. A judgment was rendered granting the same compensation for temporary disability and medical expenses as determined by the Division of Workmen's Compensation. But the court increased the award for permanent disability from 35% to 65% of total. The employer appealed, and before argument in the Appellate Division, we certified the cause on our own motion.
We shall first discuss the procedural points advanced by the employer. It argues that the January 13, 1956 order remanding the case for the second time was "unlimited in scope and by its terms terminated the appeal as far as the County Court was concerned." We cannot agree with this contention.
Jurisdiction is retained by the County Court when it remands a cause if the court so stipulates in its order. See Povoa v. Manuel Viera Construction Co., 136 N.J.L. 650 (Sup. Ct. 1948); Povoa v. Manuel Vieira Construction Co., 2 N.J. Super. 48, 49 (App. Div. 1949). The question now presented is whether jurisdiction is retained even though no express reservation is made in the order of remand.
Where additional proof is deemed necessary for final determination of a cause under review, it has been a common practice of County Courts to remand to the Division of Workmen's Compensation for additional testimony and findings. And remands for this purpose have been held to be interlocutory orders. Grogan v. William J.
Scully, Inc., 42 N.J. Super. 174 (App. Div. 1956); Paluk v. United Color & Pigment Co., 134 N.J.L. 601 (Sup. Ct. 1946); Povoa v. Manuel Viera Construction Co., supra. Quite obviously, therefore, the remanding court in such a case must still ...