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In re Application of Chester Malinowski

Decided: February 28, 1963.

IN THE MATTER OF THE APPLICATION OF CHESTER MALINOWSKI, PETITIONER-APPELLANT,
v.
RAYMOND F. MALE, COMMISSIONER OF LABOR AND INDUSTRY OF THE STATE OF NEW JERSEY, AND TRUSTEE OF THE ONE PER CENT FUND, RESPONDENT-RESPONDENT. CHESTER MALINOWSKI, PETITIONER-RESPONDENT, V. SALVATORE LINO, APPELLANT-RESPONDENT



On appeal from judgment of the Workmen's Compensation Division.

Rosen, J.c.c.

Rosen

These two interrelated appeals arise from the same set of facts in a workmen's compensation case.

The petitioner appeals from a decision and order of dismissal, dated June 18, 1962, by respondent Commissioner Male denying him benefits from the One Per Cent Fund. N.J.S.A. 34:15-94 et seq. Appellant Lino appeals from an award dated June 20, 1962 in favor of petitioner for increased total disability. The following facts are not in dispute and the court adopts the same as its findings.

On June 30, 1952 petitioner Malinowski, then 67 years of age, suffered injuries as a result of a fall from a scaffold, which accident arose out of and in the course of his employment with the respondent Lino. Petitioner's claim petition alleged permanent disability resulting from the said accident.

On April 30, 1954 a judgment in favor of the petitioner and against the respondent was entered in the Division awarding temporary disability for a period of 16-2/7 weeks at $30 per week, or $488.58, and permanent disability compensation for 90% of total, or 405 weeks at $30 per week, amounting to $12,150.

Prior to the compensable accident the petitioner was suffering from the residual effects of traumatic incidents for which he had received approximately 10% of total for accidents occurring prior to June 30, 1952; he also had an arteriosclerotic condition prior to said date, which in no way was aggravated by the accident.

As the result of the accident of June 30, 1952 the petitioner suffered disabling conditions to the head which resulted in loss of hearing and injuries to the right shoulder, cervical spine and right chest, causing a disability of 90% of total.

The deputy director's pertinent findings which were incorporated by reference in the final judgment were:

"* * * It is quite obvious that this man is no longer an industrial working unit in the accepted sense of the word. * * * I have no hesitancy in finding * * * that this man today [April 30, 1954] is totally disabled. * * *

He [petitioner] had a pre-existing disability which has been assessed in the compensation court of at least 10 per cent of partial total * * * so that he [petitioner] was, to all intents and purposes, less than 100 per cent disabled at the time this accident occurred * * * so that from a consideration of all of these factors I find that as ...


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