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Morello v. Baldanza Bakery

Decided: May 16, 1969.

ANTONIO MORELLO, PETITIONER-APPELLEE,
v.
BALDANZA BAKERY, INCORPORATED, RESPONDENT-APPELLANT, V. RAYMOND F. MALE, COMMISSIONER, DEPARTMENT OF LABOR & INDUSTRY AS TRUSTEE OF THE TWO PERCENT FUND, RESPONDENT-APPELLEE



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

In this workmen's compensation case all of the parties agree that petitioner is totally and permanently disabled and that he was employed by respondent Baldanza Bakery, Incorporated, on July 17, 1961, when he was injured in an accident arising out of and during the course of his employment. The accident resulted in the total and permanent uselessness of the left arm and hand.

The Division of Workmen's Compensation and the County Court, on appeal, concurred in finding that respondent employer was solely responsible to pay the benefits to which petitioner is statutorily entitled, and that the Two Percent Fund was not obligated to pay any part of the benefits under N.J.S.A. 34:15-95.

The employer appeals from the judgment of the County Court judgment, contending that petitioner's condition of "illiteracy," which pre-existed the happening of the accident, was such a preexisting condition within the intendment of N.J.S.A. 34:15-95 as to bring petitioner's case within the purview of the Two Percent Fund Act. Thus, the employer argues that the Fund should be required to pay part of the award under this statute. Both petitioner and the

Fund maintain that the County Court judgment was proper and should be affirmed.

Petitioner is a recent immigrant to this country and is unable to speak, understand or write English. He speaks only in his native Italian. His intelligence is on the low side of normal. There was testimony that the combined facts of his left arm condition and incapacity in English made him permanently unemployable.

The judgment in the Division of Workmen's Compensation fixing the award payable to petitioner also ordered that the Fund petition be dismissed. The judgment recites:

"8. There is no proof that the petitioner had any pre-existing disability with which the residual of the accident in combination resulted in total and permanent disability. The limited education, and the inability of the petitioner to read and write in any language, and the inability to speak or understand English are not preexisting disabilities, they were pre-existing conditions, but were part of the individual."

In a later advisory report of the judge of compensation to the Commissioner of Labor and Industry, which report was adopted in the decision of the Commissioner dismissing the petition for allowance from the Fund, it was stated that "the petitioner is in fact totally and permanently disabled from the residuals of the accident of July 17, 1961, in and of themselves, and that he is not in fact rendered totally and permanently disabled by reason of the residuals of the accident of July 17, 1961, together with the pre-existing conditions * * *." The County Court concurred in the foregoing determination. There was sufficient credible and substantial evidence in the trial record to support that finding. On the basis thereof, recourse to the Fund became inapplicable. N.J.S.A. 34:15-95.

The County Court based its affirmance of the Division's determination upon the narrower ruling that petitioner's preexisting condition of "literacy" is not a preexisting "cause" within the intendment of R.S. 34:15-95. That statute provides for payment from the Fund to

"* * * persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially ...


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