Lora, Seidman and Milmed.
Petitioner, a police officer in the employ of the Township of Union, sustained a concededly compensable myocardial infarction on February 2, 1972. He filed in due course a claim petition for compensation. A settlement was thereafter agreed to between him and his employer's insurance carrier. Pursuant to N.J.S.A. 34:15-22, testimony was taken and stipulations made before the judge of compensation, following which an order approving settlement was entered on June 21, 1973, determining petitioner's permanent disability, cardiac in nature, to be 27 1/2% of total, and awarding him therefor $40 a week for 157 1/2 weeks, for a total of $6050.
In July 1974 petitioner filed an application for review or modification of formal award under N.J.S.A. 34:15-27, based upon a claim of increased disability. The application being resisted, a hearing was held thereon. Applying the "odd-lot" doctrine, the judge of compensation (not the one who presided at the first hearing) found that petitioner had been 100% totally disabled since January 4, 1973, when temporary disability ended. Judgment was entered awarding petitioner 450 weeks at $101 a week, for a total of $45,450, with credit to respondent for the prior payment of $6060.
Respondent appeals, contending that (1) the judge of compensation applied the wrong legal principles in adjudicating the petition for modification, and (2) petitioner is not totally disabled. We affirm the judgment, but not for the reasons expressed by the judge below in his oral opinion.
The judge of compensation reasoned that
Clearly, a reading of the transcript of the hearing does not adress [ sic ] itself to the question of employability. * * *
Where parties enter into a settlement concerning the extent of disability, the matter, as prescribed in N.J.S.A. 34:15-22, is presented to a judge of compensation, who, after considering the sworn testimony of petitioner and other witnesses who may be offered, together with any stipulations and the consent of petitioner, may enter an order approving settlement, which order shall have the same effect as a determination and rule for judgment , and may be reopened only in accordance with the provisions of N.J.S.A. 34:15-27.
To the extent pertinent here, N.J.S.A. 34:15-58 provides further that a decision, award, determination and rule for judgment or order approving settlement shall be final and conclusive between the parties and shall bar any subsequent action or proceeding, unless reopened by the Division or appealed.
In this case the judge of compensation at the original hearing correctly followed the required procedure. Stipulations as to jurisdiction, compensability and medical expenses were made and accepted; petitioner was fully questioned as to causation and complaints, and the parties agreed on the percentage of disability. The judge found the settlement to be fair and just and approved the same, determining the extent of disability to be 27 1/2% of total.
The second hearing in this matter arose out of petitioner's application made under N.J.S.A. 34:15-27. This section provides, among other things not relevant to the case, that a "formal award, determination and rule for judgment or order approving settlement may be reviewed within two years from the date [of last payment] upon the application of
either party on the ground that the incapacity of the injured party has subsequently increased " (emphasis supplied).
The continuing jurisdiction of the Division upon such application is "limited to a review of the disability, insofar as it may have subsequently increased or diminished, and this is the only proper subject of review * * *" (emphasis supplied). Hopler v. Hill City Coal and Lumber Co. , 5 N.J. 466, 471 (1950). A claim of increase or decrease of disability is grounded in the comparative condition and ability of the workman and, to prevail, ...