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Bello v. Commissioner of Department of Labor and Industry

Decided: October 1, 1968.

JAMES A. BELLO, PETITIONER-APPELLANT,
v.
COMMISSIONER OF THE DEPARTMENT OF LABOR AND INDUSTRY, TRUSTEE OF THE TWO PER CENT FUND, RESPONDENT-RESPONDENT



Civil action on appeal from Division of Workmen's Compensation.

Sugrue, J.c.c.

Sugrue

This case involves a limited appeal from a decision of the Commissioner of Labor and Industry fixing the amount of petitioner's benefits under the Two Per Cent Fund (hereinafter referred to as Fund). N.J.S.A. 34:15-95.1.

In July 1959 petitioner filed a formal claim petition against his employer for workmen's compensation benefits, alleging that by reason of the contraction of an occupational disease and the development of systemic poisoning due to inhalation, absorption and ingestion of harmful dusts and gases, he had suffered injury to his neurological and respiratory systems. An answer was duly filed denying all the material allegations of the petition.

Thereafter, in October 1961, the parties reached a mutual agreement as to certain payments which were to be made to and on behalf of petitioner. Among other things, the agreement provided that the employer pay petitioner a sum equal to 25% partial permanent total, or 137-1/2 weeks at $35 per week, a total of $4,812.50. The stipulations and agreement

were approved by the judge of compensation and payment ordered.

Petitioner subsequently obtained a third-party recovery in the sum of $30,000.

In July 1965 the judge of compensation ordered that the Fund be made a party to petitioner's action. Petitioner made application in January 1966 for compensation benefits under the Fund. In April 1967 a hearing was held on the claim set forth in the original petition. The Commissioner of Labor and Industry was represented by counsel at the hearing.

The judge of compensation found that (1) petitioner while employed had developed toxic encephalopathy as a result of inhalation of harmful fumes and gases; (2) the permanent disability resulting from the occupational disease was 75% of permanent total; (3) prior to his employment petitioner suffered from and was disabled to the extent of 25% permanent total by reason of several noncompensable preexisting pathological conditions, among which were chronic bronchitis and cardiovascular disability, and (4) the preexisting noncompensable disability of 25% permanent total, in combination with petitioner's compensable occupational disease, resulted in petitioner being totally and permanently disabled.

In accordance with these findings petitioner was awarded $13,500 for the 75% disability resulting from the occupational disease (337-1/2 weeks at $40 per week). The employer was given a credit of $8,800 by reason of its right to reimbursement from the recovery in the third-party action. Credit was also given for $4,812.50 previously paid by the employer under the agreement and order of October 1961.

The judge of compensation further found that petitioner had established his eligibility for Fund benefits.

Thereafter, in November 1967, the Judge of Compensation submitted an advisory report to the Commissioner of Labor and Industry. In general, the report recommended that the ...


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