On appeal from the Division of Workers' Compensation.
Matthews, Morton I. Greenberg and Coleman. The opinion of the court was delivered by Coleman, J.s.c. (temporarily assigned).
This is an appeal from a workers' compensation proceeding which found no permanent disability. Petitioner filed a workers' compensation claim petition on March 3, 1969 alleging the compensability of a December 27, 1968 fall. The petition was never amended to allege the compensability of a March 9, 1969 auto accident. On January 9, 1973 a settlement was presented to a judge of compensation in the form of an order approving settlement. In connection with that proceeding certain medical evidence was introduced. That evidence included a report of Dr. Bergman, who evaluated 2 1/2% partial total for overlapping post-traumatic neuropsychiatric disability causally related to the accident of December 27, 1968. In his report he further revealed that the medical records disclose that at the time of the X-rays following the December 27 accident petitioner had a "periosteal tear at the joint area between the distal sacral segment at the first coccygeal segment." Dr. Cannata's report, who also examined for respondent, was marked into evidence. His report disclosed the following: "January 1970 a myelogram of a lumbar spine was performed and revealed a flake fracture of L6 and S1 articulate faceltis (right side)." Dr. Cannata evaluated 17 1/2% overall, regardless of cause, for the residuals of a flake fracture of the articulate faceltis of L-6 and S-1 superimposed on a previous pre-existent congenital anomaly, and the residuals of a postoperative spinal fusion and scarring approximately eight inches in length.
For some unexplained reasons, counsel for petitioner never submitted the order approving settlement for the judge's signature. On October 25, 1974 the judge prepared and signed a
judgment instead of an order approving settlement. On December 30, 1974 a notice of motion for rehearing was filed and the motion was heard on December 18, 1975, at which time the settlement was vacated and a plenary trial date was set. The trial commenced on July 5, 1977 and a decision was finally rendered on April 23, 1980, finding no permanent disability related to the December 27, 1968 accident.
The facts adduced at trial showed that respondent conceded the compensability of the December 27, 1968 accident in which petitioner sustained injuries as a result of a fall. These injuries were to the coccyx, low back, buttocks and right leg. The two physicians immediately seen by the petitioner for these injuries saw her three to four times a week and treated her with diathermy, injections, medication and prescribed a back brace. During that time petitioner had pain in the coccyx, low back, leg and hips. An X-ray reportedly revealed a fractured coccyx.
During the course of this treatment, petitioner was involved in an automobile accident on March 9, 1969. The collision occurred while petitioner was a passenger in a car returning from a visit to one of her treating physicians.
The March 9, 1969 collision seems to have been quite a serious one, for the car spun around several times from the impact. Petitioner testified below that her injuries were sustained when the impact forced her right arm to strike the door, her head to go back, her shoulders to twist, the striking of her left ankle and right hand in an attempt to brace herself, and her buttocks to be struck by her pocketbook.
Petitioner was taken to John F. Kennedy Hospital where she complained of injury to the dorsal lumbar area, the right hand, the left ankle, the head, neck and shoulders.
Petitioner continued to receive diathermy, injections, medication and brace treatments made necessary by the December 27, 1968 fall. In addition, petitioner required neck and shoulder treatment as well as whirlpools, traction, hot packs, a bed board and elastic stockings.
Petitioner testified that prior to the automobile accident she had shooting pain from the coccyx into the hips, in the right leg, low back and right foot. She could not do housework, bend or lift heavy objects. She has been on disability, not working and under continual doctors' care from the time of the original fall on December 27, 1968 until the trial.
In January 1970 one of petitioner's doctors hospitalized her for a myelogram and surgery to her low back at L-5 and L-6. Surgery was performed in February 1970 consisting of a laminectomy, excision of a disc and a fusion. However, the surgery did not eliminate petitioner's pains. In September 1970 petitioner had right-hand surgery for a double ganglion cyst. She was admitted to New Brunswick Rehabilitation Center for a month in October 1970 and returned to the center for weekly treatments for a year while continuing previously described treatment.
In 1974, while continuing diathermy, injections, medicine and traction therapies, petitioner was sent to the John F. Kennedy Hospital for X-rays. Subsequently she was sent to Rahway Hospital for an electromyogram and to John F. Kennedy Hospital for a second myogram. Petitioner declined to have surgery at this time, but the pain continued as did the treatments.
At trial petitioner called her two daughters to testify as to her disabilities in doing simple housework tasks and attending to her own personal hygiene. Petitioner continues with diathermy, medication, injections of cortisone and traction, and still remains in pain, unable to perform simple household tasks. Petitioner and the doctors who testified on her behalf claimed she was totally disabled from the residuals of the two accidents. The judge of compensation, however, disagreed and found no permanent disability related to the December 28 accident.
On appeal petitioner contends the judge erred. Respondent has cross-appealed, contending that it was error to vacate the order approving settlement. We agree that the finding that petitioner had ...