Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.
The nature of this litigation is indicated in the opinion of the Union County Court, reported at 105 N.J. Super. 226 (1969).
The principal ground of appeal is that the judge of compensation was without "jurisdiction" to ignore the finding of fact by the "referee, formal hearings" in the earlier section 22 proceeding (N.J.S.A. 34:15-22) that there was no causal connection between the accident and any impairment of the eye itself, as distinguished from the injury to the eyebrow or forehead. The contention is that the stated earlier finding was res judicata and therefore precluded the later finding, even though made in a section 27 proceeding (N.J.S.A. 34:15-27), that the claimed injury to the eye was causally related to the same accident, and the consequent conclusion that petitioner's disability from the accident had increased since the first award.
We are in essential agreement with the reasons given by Judge Di Buono in the County Court for rejecting respondent's argument. We add the following. The fact that a different bodily unit or function is implicated in the increased overall disability from that involved in the earlier award does not derogate from the appropriateness of section 27 relief. See Yeomans v. Jersey City , 27 N.J. 496, 509 (1958). Moreover, the fact that the judge of compensation in the later proceeding did not articulate his conclusions in terms of degree of increase of disability, as strictly as he should have, is not material since the substance of his determination amounted to such a finding, and the County Court placed its affirmance on that basis. See the County Court opinion, 105 N.J. Super. , at 232-233.
On this appeal respondent raises for the first time the contention that it should have been credited in the final judgment for the $673.75 initially awarded against it for the injury to the right eyebrow. We could well ignore the belated argument. Baginsky v. American Smelting & Refining Co. , 88 N.J. Super. 69, 83 (App. Div. 1965), certif. den. 45 N.J. 588 (1965). It will suffice to say we have considered and find no merit in the contention.
Respondent also argues that the compensation court erred in allowing $40 per week for the scheduled 200 weeks for loss of sight of the eye contrary to the rate of $35 per week fixed by the statute as it stood as of the date of the accident. N.J.S.A. 34:15-12(c).*fn1 This point was raised in the County Court by simple assertion in the respondent's brief but was not dealt with in the opinion of that court, probably because not supported by argument. We deal with it because the question is important, has not been ruled upon before, and should be settled.
In allowing petitioner $40 per week against respondent for the scheduled 200 weeks of loss of sight of the eye the judge of compensation said:
The allusion to the heart and nephritis conditions is related to the fact that after filing his petition for increased disability petitioner had also filed a petition for Fund (formerly known as the One Percent Fund) benefits pursuant to N.J.S.A. 34:15-95 based on the allegation that the combined effect of his employment-connected injury and other previous nonconnected ailments rendered him permanently and totally disabled. The judge of compensation found that this was so and that the heart disability and the nephritis disability were each 25% of total. No contention to the contrary has been made by anyone. Although the Attorney General, presumably representing the Fund, was present before the Compensation Division, he did not appear before the County Court or on this appeal. His nonparticipation will not, however, prejudice the Fund, for we have concluded that although petitioner is entitled to the $40 rate for the scheduled 200-week period, it is payable in entirety by respondent-employer and not to any extent by the Fund.
The issue presented, from the standpoint of petitioner, is merely whether he is entitled to $40 per week for the 200 weeks in question or only $35. But determination thereof is hardly separable, as a matter of statutory construction, from the question as to who is liable for the $5 difference, if petitioner prevails, as between respondent and the Fund. This is so because petitioner's whole position is premised on the provisions of the Fund Act, specifically, N.J.S.A. 34:15-95.
The general purposes and objects of the Fund Act have been frequently reviewed by the courts and need not be detailed here. It will suffice to say that if a person already suffering partial permanent disability from a noncompensable condition or accident sustains a work-connected accident and becomes totally and permanently incapacitated from the combined effect of the two disabilities, he is entitled under section 95 to compensation for the full disability, but in such case the employer's liability is limited to the portion of the incapacity produced by the employment accident, and the balance is charged to the statutory fund (except for certain situations specified in ...