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Close v. Bros.

Decided: June 1, 1965.

GARNET CLOSE, PETITIONER-RESPONDENT AND CROSS-APPELLANT,
v.
KORDULAK BROS., RESPONDENT-APPELLANT AND CROSS-RESPONDENT. CHARLES HENRY CLOSE, PETITIONER-RESPONDENT, V. KORDULAK BROS., RESPONDENT-APPELLANT



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 Hall, J. Proctor, J. (concurring).

Hall

Charles Henry Close, the employee involved in these workmen's compensation proceedings, was a welder, who, while working for Kordulak Bros. on a construction job in Bayonne, New Jersey, on September 9, 1959, suffered a heart attack. The nature of the attack was a coronary occlusion which resulted in a myocardial infarction. It has been conceded throughout that the incident constituted a compensable injury. He never returned to his trade and died from heart failure on August 3, 1961. During his lifetime he filed a petition seeking temporary and permanent disability compensation and after his death his widow commenced the second of the actions before us asking for the award of dependency benefits. The cases were consolidated for trial.

The fundamental issue, under the principles and guidelines laid down in Dwyer v. Ford Motor Co., 36 N.J. 487, 491-495 (1962), and Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139 (1963), was whether the death was causally related to the

accident or resulted rather from the mere natural progression of underlying arteriosclerotic heart disease. Judge of Compensation Stahl held causal relationship was sufficiently established, finding "that the petitioner's decedent died as a result of the injury and initial damage to his heart and the subsequent downgrade of health which continued unabatedly until the time of his death * * *." The County Court came to the same conclusion on appeal after de novo consideration of the record in the Division of Workmen's Compensation. N.J.S.A. 34:15-66; R.R. 1:2-12(a), 5:2-5(d). The award was for temporary disability compensation from the date of the accident to the date of death (less a period of six weeks during March and April 1960 when Mr. Close was permitted by his physician to engage in the light work of soldering lamp parts sitting at a bench) plus death benefits for his dependents thereafter pursuant to N.J.S.A. 34:15-13. The employer appealed to the Appellate Division. Contending that the requisite causal relationship had not been established, it urged, of course, that dependency benefits were erroneously awarded. In line with this thesis, it took the position that the permanent disability properly attributable to the accidental injury was only partial (its proofs estimated such at 25% of total) and that temporary disability compensation should not extend beyond the date within his lifetime when the condition resulting therefrom had become static.

A second question in the case was the number of dependents entitled to share in death benefits, assuming the propriety of an award for that aspect. When the coronary incident occurred in September 1959, the employee had a wife and five children. A sixth child, conceived after that event, was born a little more than two months before his death. The widow and all six of the children were actually a part of his household at the time of death and each child was then under 18 years of age. Both the Division and the County Court held that the child born after the accident was not entitled to dependency benefits because they considered that prior judicial interpretations of the pertinent statutory section,

N.J.S.A. 34:15-13(g), required as matter of law that dependency based on relationship be determined as of the date of the original accident rather than at the time of death. The widow cross-appealed from this denial of benefits to the afterborn child.

We certified both appeals on application after the filing of briefs in the Appellate Division and before the matter came on for argument there. R.R. 1:10-1A. This Court in this case therefore occupies the same position as the Appellate Division would have, namely, the first reviewing tribunal beyond the County Court.

I.

The matter of the causal relation of the original accident to the death almost two years later is essentially a question of fact. Both the Division of Workmen's Compensation, after a full-blown adversary trial, and the County Court, on a de novo consideration of the record, resolved that question affirmatively on conflicting proofs, mostly in the nature of medical opinions. Since Russo v. United States Trucking Corp., 26 N.J. 430 (1958), and Ricciardi v. Marcalus Manufacturing Co., 26 N.J. 445 (1958), it has been obligatory upon the Appellate Division, in the review of factual determinations in compensation cases on appeal from the County Court, to undertake another independent review and evaluation of the evidence and make its own findings and conclusions thereon. Recently, in McAllister v. Board of Education, Town of Kearny, 42 N.J. 56 (1964), we held that Russo and Ricciardi do not make mandatory a fourth factual finding by this Court where an appeal from the judgment of the Appellate Division is allowed. We further pointed out that, even with respect to review in that tribunal, "those decisions have not escaped criticism (13 Rutgers L. Rev., at pp. 73, 172 (1958)) and have entailed troublesome problems" and that "[p]erhaps they should be reconsidered * * *" 42 N.J., at p. 58. See also State v. Johnson, 42 N.J. 146, 160, n. 2 (1964). We

think that this case, in which we have the same reviewing obligation as the Appellate Division would have if the appeals had remained with it, furnishes an appropriate opportunity to look again at their procedural doctrine.

Neither Russo nor Ricciardi was decided by a full court and the same justices did not sit in both cases. Consolidation of the votes discloses that three justices, who remain members of the court in the instant case, felt that the Appellate Division is not required to make new and independent fact findings in compensation appeals. The view of the present court is that the Russo majority overlooked some vital considerations in arriving at its contrary conclusion and that reappraisal in the light of those considerations now makes it apparent that the majority there was in error.

The Russo result rested on two propositions. First, the court said, that under the pre-1947 practice the former Supreme Court in reviewing a compensation case "was required to re-evaluate the evidence." (Emphasis supplied) 26 N.J., at p. 433. Second, it concluded that there was "no basis for an inference that it was the intendment of the new practice to lessen the scope of review on factual matters in workmen's compensation proceedings." 26 N.J., at pp. 434-435. The oversight occurred with respect to this latter holding in not giving appropriate recognition to certain provisions of the Constitution of 1947 and subsequent implementation thereof. Demonstration of the error therein necessitates a brief summary of the former practice.

At the time of the adoption of the 1947 Constitution and for an extended period previously, appeal from the then Workmen's Compensation Bureau was, by statute, N.J.S.A. 34:15-66, to the Court of Common Pleas where the case was determined de novo on the record made in the Bureau. The action of that court was reviewable in the former Supreme Court only by the discretionary prerogative writ of certiorari. Anderson v. Federal Shipbuilding & Dry Dock Co., 118 N.J.L. 55 (Sup. Ct. 1937), quoted and relied upon in Russo, 26 N.J., at p. 434, in support of the first proposition as to the

requirements of the old practice, may be assumed to have held that it was obligatory on certiorari in compensation cases to weigh the evidence and make independent fact findings, although concordant findings of the two lower tribunals would not be lightly disturbed where there was evidence to support them. This holding was based on section 11 ...


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