For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
The question is whether an employee is barred from recovering workmen's compensation under our statute because he obtained an award against his employer in New York. The Division of Workmen's Compensation and the county court held he was barred. We certified his appeal before the Appellate Division acted upon it.
The contract of employment was made in this State between parties who were and continued to be residents of this State, the employer being a domestic corporation. The work was performed in New Jersey or New York depending upon the location of the jobs the employer contracted to do. The accident occurred at a New York job site.
Upon these facts the employee became entitled to the benefits of the New Jersey compensation law notwithstanding that New York, as the state of accident, might also deem its compensation law to apply. Gotkin v. Weinberg, 2 N.J. 305 (1949); see Wilson v. Faull, 27 N.J. 105, 117 (1958); Boyle v. G. & K. Trucking Co., 37 N.J. 104, 112 (1962). That much is not disputed. Rather the employer contends the employee lost his right under our statute when he pursued the right afforded by the New York law, and this because of the full faith and credit which the judgment of a sister state must be accorded under Art. IV, § 1 of the Constitution of the United States, as implemented by 28 U.S.C. § 1738 (1948).
In the New York proceeding brought by the employee, the employer at first disputed jurisdiction and a hearing was directed to that issue. Ultimately the employer withdrew its defense. An award was made for $270 for disability between
May 26, 1959, the date of the accident, and July 7, 1959, less a fee of $25 payable to counsel for the employee. The decision reads:
"Case was closed. Accident notice & causal relation established spontaneous pneumothorax. Reimburse claimant $10.00 for drugs etc. No further disability."
In the present proceeding the employee claims 30 percent of total permanent disability, which in dollars would greatly exceed the sum awarded in New York. The employer answers that the employee misunderstands the New York proceeding; that the award thus far made relates solely to the issue of jurisdiction and compensation for the period of medical treatment; that petitioner may still have compensation for the loss of earnings due to the disability, and indeed may ultimately obtain a larger recovery than under our statute.
We are satisfied the New York award was not intended to dispose of the total claim of the employee, but we are unable to say whether the employee will fare better here than there. We do not know what percentage of total disability under our statute will be found at a trial, and even if that figure were fixed, we cannot compare it with the benefits under the New York statute since, while our act compensates for the disability without regard to wage loss, the New York statute compensates only for wage loss caused by the disability, and we can hardly foretell the employee's future earnings. At any rate, for reasons which we will presently state, the controversy does not depend upon a comparison of possible recoveries.
The case turns upon the meaning of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S. Ct. 208, 88 L. Ed. 149 (1943), and Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947). The subject is fully explored in 2 Larson, Workmen's Compensation Law (1961) § 85, pp. 358 et seq. We will but summarize what there appears: state courts had generally assumed that successive awards could be had, subject to credit
for moneys paid under the prior award, until Magnolia by a vote of 5 to 4 held the first award had to be given full faith and credit. Annotation, 150 A.L.R. 431 (1944). That case was quickly questioned by writers on the subject. Four years later McCartin was decided. It is now generally agreed that McCartin severely limited Magnolia by holding that the second state may enforce its own compensation law unless the law of the first state unmistakably provides that a judgment under it shall bar recovery in another state. Restatement, Conflict of Laws § 403 (1948 supp.); Goodrich, Conflict of Laws (3 d ed. 1949) § ...