On appeal from New Jersey Department of Labor and Industry, Division of Worker's Compensation.
Fritz, Botter and Ard. The opinion of the court was delivered by Fritz, P.J.A.D.
This is an appeal by the employer from an adverse judgment in a relatively extraordinary workers' compensation case.
The employee suffered a compensable industrial injury on July 18, 1956. On May 20, 1957 a judgment was entered in his favor for 65% permanent partial disability. The last payment under that award was made on August 5, 1963. A timely petition for review of this award pursuant to N.J.S.A. 34:15-27 was filed and that petition was heard on May 27, 1965. This resulted in the entry of a judgment reflecting an increase in adjudicated disability amounting to 10% of permanent partial disability or an aggregate of 75%. However, the judge of compensation, in his oral findings and conclusions at the end of the case, made the following comment:
Now, both Dr. Keats and Dr. Pollock, who appeared and testified for the petitioner, have indicated that the man is totally disabled, except for the question of rehabilitation. In other words, if he is not rehabilitated, he would be, in their opinion, 100% of total. However, since there has never been a serious attempt at rehabilitation, I feel that it is premature at this time to rule that out and merely cast the man away and say that he is totally disabled and let it go at that. I don't think that's the way to handle this case. The man is
young and may well return to good productive service in the community and family life and in some industrial capacity.
It is clearly inferable (if not inescapable) from the foregoing that the judge of compensation believed the employee to be totally disabled at that time. It is equally apparent that he thought it in the best interest of everyone to give rehabilitative efforts a first chance toward the end, perhaps, of reducing the disability to something less than total.
Indeed, the following day the judge referred the matter to the New Jersey Rehabilitation Commission by way of a form provided for this purpose, to which he added the note:
Mr. Hyman has promised me that he would cooperate fully on the question of rehabilitation. It will be a great misfortune if he is permitted into a total disability status for want of appropriate attention. From talking with him I am persuaded that he wants to be and can be a productive member of society. Please keep me advised or [sic] progress.*fn1
The employee was thus led to believe not only that rehabilitation efforts would be undertaken on his behalf but, perhaps more significantly, that he was expected to cooperate in this regard. Nobody denies that rehabilitative efforts did in fact take place. The duration is unclear in the record.
On May 31, 1973 the employee filed another petition for review, asserting that he was totally disabled. More than a year later, on June 17, 1974, the employer filed its answer. It asserted the ...