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Dimarcello v. American Bridge Co.

Decided: October 1, 1962.

PETER A. DIMARCELLO, PETITIONER-APPELLANT,
v.
AMERICAN BRIDGE COMPANY, RESPONDENT-RESPONDENT



Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[76 NJSuper Page 330] This appeal stems from proceedings instituted by petitioner by way of motion for an order directed to respondent company and certain of its employees to show cause why they should not be held in contempt of court (sic) for interfering with the prosecution and processing of claim petitions which petitioner had theretofore filed in the Workmen's Compensation Division, as well as attempting by duress to compel the discontinuance of such claim petitions, and further, for subornation of perjury and for obstructing the obtaining of compensation benefits as provided

by law. The notice of motion stated that the application would be based upon the testimony taken in the Division on March 24 and 25, and April 28, 1959. Deputy Director Neutze (now Judge of Compensation) presided at those hearings.

Petitioner sustained injuries arising out of and in the course of his employment with the company on two occasions -- to his right leg in June 1957 and his left foot in October 1957. He filed separate petitions for compensation on July 2, 1958 and respondent answered on September 26 following. It appears that petitioner lost no compensable time after either accident, but continued performing his regular duties until he was laid off on May 30, 1958 (a little more than a month before the filing of the claim petitions) as part of a general cutback of employees because "the company was slack."

In August he received a registered letter informing him that respondent was in a position to offer employment. When he went to the employment office he found present Doctors Norton and Joyce, the plant nurse and Mr. Cook, the Supervisor of Employment and Safety. Dr. Joyce examined him and told Dr. Norton that he found petitioner physically fit. Dr. Norton asked, "How is your leg?" Petitioner answered, "It still bothers me but it * * * don't bother me enough to interfere with my work." Dr. Norton said he would have to call in Plant Superintendent Engbrecht because "I can't put you to work." When Engbrecht arrived the doctor told him, "I can't put him to work because the answer he gave me is no good." According to petitioner, when he pleaded for a chance to return to work because of his dependents, Engbrecht said, "Well, as long as your leg hurts and you got a petition in, we are going to have to leave you out." Engbrecht suggested that Cook might have light work for him, to which Cook responded, "I ain't got nothing for you."

Continuing with petitioner's testimony: he said that he returned to the plant a week later, and when Dr. Norton

asked him how his leg was, he again informed the doctor that it bothered him, but not enough to interfere with his job. Dr. Norton then said, "We can't take an answer like that; you have to say there is nothing wrong with it to go back to work." Further, the doctor said, "You got a petition in anyway; that is hurting you too."

Petitioner was at the plant for a third time a week later. He testified that the doctor told him, "When you decide to give me the correct answer, we will be able to put you to work." The doctor had a tape recorder, and when petitioner said that he didn't know why he had to talk into the machine -- "I am not a criminal" -- the doctor replied, "Well, you have to talk over it." The result was that when the doctor again asked him if his leg hurt, petitioner said that it was not hurting any more, and "If that's the answer you want, Doctor, that is what I will give you." The doctor said, "Don't forget now * * * what you said over this microphone, it is going to be held in court on your petition."

Petitioner went back to work the following Monday.

The deputy director, in his findings and conclusions, reviewed the legislative history of our Workmen's Compensation Act with respect to the contempt power of the Workmen's Compensation Division and its predecessor Workmen's Compensation Bureau. He concluded that since it was a statutory tribunal and there had been no legislative grant of power in the circumstances presented, petitioner's application for an order to show cause had to be denied.

On appeal the County Court affirmed the judgment with respect to the Division's lack of power to punish for contempt under the facts presented. However, the county judge was of the opinion that there was not sufficient evidence to warrant a finding that the company or the several individually named parties "were engaged in the practice of interfering with and threatening an injured workman who had filed a claim for workmen's compensation."

Before proceeding to a discussion of the Division's contempt power, we find it necessary to ...


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