Petitioner, Paul Svec, was injured while working at Westfield Motor Sales, Inc., on August 4, 1960. He filed claim petition on June 4, 1962, alleging injury to his forehead and right eye. Westfield answered, admitting compensability of the head, but denied that any injury to the eye was related to the accident.
A hearing was held before a formal referee on October 10, 1962. At the outset it was stipulated that
"The sole issue in this case is the nature and extent of permanent disability for a suturing of the right eyebrow, scar over the right eyebrow, as a result of the aforementioned accident. * * * (Emphasis supplied)
Petitioner testified to the details of the accident and extensive medical testimony was taken, not only as to the head injury, but as to the eye injury as well. The referee, in conclusion, stated:
"The sole issue remaining is the nature and extent of permanent disability and from the proofs adduced before me, I find petitioner sustained a partial permanent disability of 3 1/2% of total which is neurological in nature entitling him to 19 1/4 weeks at $35.00 a week or $673.75. As far as any claim for loss of vision or an early cataract in the petitioner's right eye, the treating records and that of Dr. Plain spelled out the view that this incident could not cause that and I so find and that the disability given to the petitioner will be strictly for the scar and any anxiety reaction he may have had as a result of this accident." (Emphasis supplied)
Following entry of this judgment, petitioner filed an application for review and modification of formal award, pursuant to N.J.S.A. 34:15-27, alleging an increase of disability as 100% of the right eye. Respondent denied liability, any increase in disability, and further asserted that the judgment by the referee was res judicata.
The judge of compensation, in denying respondent's motion to dismiss, held that the referee's judgment was not res judicata for the reason that he had exceeded his jurisdictional powers as specified under N.J.S.A. 34:15-22 of the Workmen's Compensation Act because he made a finding not only as to the extent of disability resulting from the head injury, but also as to the causal relationship of a nonstipulated eye injury which allegedly resulted from the accident.
The matter was then reheard by the judge of compensation, who stated that "The issue before me is the nature and extent of ophthalmological injury causally related to the accident of August 4, 1960." * * * He found petitioner's blindness of the right eye was caused by the accident and was due to the worsening of the condition of the injury to the head for which petitioner had been compensated; that respondent was responsible for 100% loss of vision of that eye, and that petitioner was totally disabled from all causes under conditions such as entitle him to benefits.
The compensation judge, in finding that the referee had exceeded his jurisdictional and statutory power, relied on N.J.S.A. 34:15-22, which provides in part:
"No agreement between an employee and his employer * * * for compensation shall operate as a bar to the formal determination of any controversy, unless such agreement has been approved by the * * * referee designated as a 'referee, formal hearings,' in open court; provided, * * * that the only issue involved is the extent of the disability, the * * * referee * * * may, with the consent of the parties, after considering the sworn testimony of the petitioner and such other witnesses present, together with any stipulations of the parties, enter a ...