Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
[75 NJSuper Page 431] The Prudential Insurance Company of America (Prudential) appeals from an order of a hearing officer of the Disability Insurance Service, Division of Employment Security, Department of Labor and Industry, directing the payment of temporary disability benefits to the respondent Safar, under N.J.S.A. 43:21-25 et seq. Mrs. Safar was an employee of Regina Corporation. That company was the policy holder of a private plan of temporary disability which was underwritten by Prudential for the benefit of Regina's employees, pursuant to the provisions of N.J.S.A. 43:21-32.
In April 1958 Mrs. Safar fell while at work and suffered an injury to her spine. Concededly, this incident was an accident which arose out of and in the course of her employment entitling her to the benefits of the Workmen's Compensation Act, R.S. 34:15-7 et seq. In due course she filed a petition for compensation in the Workmen's Compensation Division and received an award for temporary and permanent disability. She returned to work in July 1958 and continued at her regular job until September 12, 1959, when she temporarily ceased work upon the advice of her physician, and with the consent of her employer took a leave of absence. She resumed her employment on November 16, 1959.
The issue in this case is whether she is entitled to the benefits of the Temporary Disability Benefits Law (N.J.S.A. 43:21-25 et seq.) for the latter period. Shortly after November 16 Mrs. Safar filed a petition with the Workmen's Compensation Division for a reopening of her compensation case, claiming an increase in disability over that for which she had previously been compensated. She also filed a claim for temporary disability benefits with Prudential for the period in question. That claim was rejected on the basis of Mrs. Safar's disqualifying statement that her disability resulted from a "sprain of cervical spine & lumbar spine" suffered when she "fell at work, landing on her back."
The reopening of the compensation case came on for hearing on March 30, 1961. An abbreviated transcript of the findings of the workmen's compensation judge recites that temporary and permanent disability benefits and medical reimbursement were at issue. The theory then advanced by the petitioner and supported by her doctor was that there had been an increase in permanent disability orthopedically, and that a further development of a severe post-traumatic neurosis of the anxiety type was also attributable to the accident. The respondent's doctors took the position that her compensable disability had not increased, and that her disabling symptomatology was referable to the arteriosclerosis and high blood pressure for which she was then under treatment.
The compensation judge found it "very difficult to isolate the results of the trauma of the original accident from the consequences of hypertension and arteriosclerosis." However, placing these competing factors in balance the judge concluded that:
"The petitioner's permanent disability has increased in neuropsychiatric nature from seven and one-half percent of total to eleven and one-half percent of total * * *."
Judgment was entered for petitioner accordingly. It is of significant importance to note at this point that in granting this award the judge made no finding whatever as to Mrs. Safar's right to temporary compensation for the period September 13, 1959 until November 16, 1959. The absence of such finding is the genesis of the present dispute.
Thereupon Mrs. Safar applied for temporary disability benefits for the period September 13 to November 15, 1959. A transcript of the hearing thereon, held September 21, 1961, reveals that when Mrs. Safar was asked why she discontinued work on September 12 she related the many physical complaints of pain, suffering and disability which she endured in the two months following that date, to the industrial accident. The following excerpt from her testimony makes this clear:
"Q. In your opinion, as far as you know, is the illness from September 12, 1959 to November 16, 1959 due to the accident, or is it due to some other cause?
Q. You are certain it is due to the ...