Labrecque, Kolovsky and Matthews. The opinion of the court was delivered by Labrecque, P.J.A.D.
[121 NJSuper Page 570] In August 1968 Henry Szpera filed a petition with the Division of Workmen's Compensation for review and modification of a judgment which had been entered in his favor on June 12, 1944. On September 8, 1969, while that proceeding was pending, Szpera died and, thereafter, his widow, Eleanor, filed a dependency petition for death benefits. The petitions were consolidated for trial and awards made in the Division for both revision and lifetime benefits on the petition filed by Szpera, and dependency benefits on the petition filed by his widow. The employer, Mohican, appealed to the County Court which affirmed both judgments. Mohican's appeal to this court challenges only the refusal of the Division and the County Court to give it a credit, pursuant to N.J.S.A. 34:15-40, against the award made in response to Szpera's petition for modification of the 1944 judgment, for the amount of a third party recovery in the sum of $18,500 which Szpera obtained during his lifetime as a result of an automobile accident in which he sustained injury to his right leg.
On January 21, 1942 Szpera sustained work connected thermal burns to various parts of his body, including his right leg. A claim petition was filed and judgment was entered in his favor on June 12, 1944 for total permanent disability benefits amounting to 400 weeks of compensation. Sometime thereafter Szpera became sufficiently rehabilitated to be able to work as a self-employed welder and at the expiration of the 400 week period his benefits were reduced to the statutory minimum of $7.50 per week, which Mohican's insurance carrier continued to pay him during his lifetime. In his deposition, which was received in evidence at trial, Szpera testified that although he had suffered burns to 35 to 40% of his body in the 1942 accident, the injury to his right leg was the most serious. After his initial hospitalization and treatment were completed (in 1943 or 1944) he was not treated by any doctor until February 1966. During this 22 year period, however, his right leg never healed but he continued to suffer periodic breakdowns of the scar tissue involving swelling and ulceration of the leg. During this period he treated his leg himself with ointment and bandages. This condition continued until February 8, 1966, when his truck was struck and jolted by another vehicle as he was attempting to enter it. He fell to the ground, scraping his right leg, including that portion which had been injured in the 1942 accident, in the process.
Following the 1966 accident the condition of decedent's leg worsened, and the swelling and ulceration which developed caused him to seek medical aid. On April 10, 1966 he was hospitalized and underwent surgery to the right leg. In December 1966, upon the surgical excision of an ulcer and the insertion of a skin graft, a laboratory examination disclosed the presence of cancer cells. Decedent's condition was diagnosed as a Marjolin ulcer, a cancerous growth (epidermoid carcinoma) known to develop in the scars of burned areas in the skin after chronic irritation or breakdowns. The cancer continued to spread, notwithstanding
further surgery on April 29, 1967, May 17, 1967 and in March, 1969. He died six months later.
At the trial in the Division, Dr. Meijer, who performed the 1966 operations, testified that there was causal relationship between the development of the Marjolin ulcer and the original 1942 burns. He was of the belief that the Marjolin ulcer in all probability was already present in its early stages at the time of the accident, and while he could not exclude the 1966 accident from playing some part in the acceleration or exacerbation of what he felt was a cancerous condition, he was of the opinion that even without the 1966 accident the cancer would have developed -- probably one or two or three years later. In his opinion, if decedent had not developed the old burn scars from his 1942 injuries, cancer would not have developed from the 1966 accident.
Dr. Hudock, a cancer specialist who operated on decedent in April and May 1967, was of the opinion that without the existence of the original burns the cancer would never have developed. While he could not specifically state that the cancer existed prior to February 1966, he believed that it existed to some degree and that the trauma suffered in the accident aggravated and exacerbated it.
Dr. Carter, who performed extensive surgery on decedent in 1969, testified that there was direct causal relationship between the 1942 injury and the cancer, and that the repeated breakdowns in the burned area were "infinitely more significant" in causing the condition than was the 1966 accident. He opined that the 1966 accident played a "very secondary and irrelevant part" in the development of the skin cancer.
Respondent's expert, Dr. Lewis, testified, in response to a hypothetical question, that the cancer was caused by a combination of the earlier burn injuries and the trauma suffered in the 1966 accident. In his view it was improbable that the cancer existed prior to February 1966, although he conceded
that decedent was more prone to the development of malignancy at that time because of his underlying burns.
The judge of the County Court found (as did the judge of Compensation) that Szpera's 1942 burns were the cause of the development of the cancerous condition in 1966. He did not entirely exclude the 1966 accident but found that it was, at most, "really a superimposed accident, and, of itself, questionable as to the degree it effected [sic] the preexisting condition." (Emphasis added.) He agreed with the Division's finding which held Mohican responsible for 95% of the cost of the extensive medical and hospital treatment which followed the 1966 accident. He found that decedent's action against the party ...