On appeal from the Commissioner, Department of Labor and Industry of the State of New Jersey.
Botter, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
This is a workers' compensation case. Petitioner-appellant is totally disabled. This fact is not disputed. While he is the appellant the real dispute is between his employer, Tasty Baking Co. (Tasty) and the Second Injury Fund (Fund) as to liability to petitioner for payment of compensation beyond the 450-week base period. N.J.S.A. 34:15-12(b); N.J.S.A. 34:15-95.
Petitioner was in Tasty's employ on April 11, 1972 when he sustained compensable injury to his lower back. He filed a claim petition against Tasty. The Fund was brought into the matter by the employer. Petitioner had sustained compensable injuries to his lower back on two prior occasions. For these
accidental effects he was awarded 22 1/2% of partial total disability on January 2, 1965 and 21 1/2% on June 11, 1969.
N.J.S.A. 34:15-95(b), as it existed when the decisions below were rendered, provided that a totally disabled worker could not receive Fund benefits if such disability resulted "from the aggravation, activation or acceleration, by the last compensable injury, of a preexisting noncompensable disease or condition."*fn1 Our Supreme Court, in reviewing this section, held that where there is aggravation, activation or acceleration of a prior condition by a later compensable accident it is of no moment, in the legislative scheme, whether the preexisting condition was compensable or not. In either case the Fund is not liable to the employee. Paul v. Baltimore Upholstering Co. , 66 N.J. 111, 127-129 (1974).
The hearing on petitioner's claim involving the 1972 accident resulted in a determination by the judge of compensation that petitioner was totally disabled. On the issue of Fund benefits the judge found that the last compensable injury combined with the injuries sustained in the two prior accidents to produce total disability. He found, however, that the last accident did not aggravate the effects of the two prior accidents. Pursuant to N.J.S.A. 34:15-95.1 the judge recommended to the Commissioner of Labor that the Fund be held liable to petitioner. N.J.S.A. 34:15-95(b).
The only party aggrieved by this advisory report was the Fund, whose attorney filed with the Commissioner exceptions in the form of a brief. No hearing was had at this level (we do not suggest a hearing is necessary). The only papers filed by any party with the commissioner were the exceptions asserted by the Fund. Joseph F. McCarthy, "Director, Office of Special Compensation Funds for the 'Commissioner' of Labor and Industry," acting for the Commissioner, reviewed the matter and concluded that petitioner's last accident "aggravated and worsened" his preexisting conditions. Director McCarthy therefore entered an
order rejecting the trial judge's recommendations and dismissing the application for Fund benefits.
Petitioner then moved before the judge of compensation for an order modifying the judgment against Tasty to charge his employer with responsibility for total disability, including any payments later due under N.J.S.A. 34:15-12(b). At the hearing on the motion Tasty and the Fund argued that the judge of compensation had no jurisdiction to so modify his award and that petitioner's remedy was to appeal the Commissioner's order. The judge held the same view and denied the motion "for lack of jurisdiction." This appeal followed.
We are thus presented with a conflict of opinion between the factual conclusions drawn by the judge of compensation before whom all witnesses appeared and testified and those of the agent of the Commissioner who appears to have undertaken, in some degree at least, a paper review of the matter. We approach the problem with an awareness of the settled principles of Close v. Kordulak , 44 N.J. 589, 598-599, 210 A.2d 753 (1965), tempered by the collateral observation of Judge Jayne that, "'the best and most accurate record [of oral testimony] is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was ...