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Lewicki v. New Jersey Art Foundry

Decided: December 22, 1981.

FRANK LEWICKI, PETITIONER-APPELLANT,
v.
NEW JERSEY ART FOUNDRY, RESPONDENT-APPELLANT, AND THE SECOND INJURY FUND, RESPONDENT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 176 N.J. Super. 358 (1980).

For affirmance in part and modification in part -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

The primary issue in this workers' compensation appeal is the proper standard of review by the Commissioner of Labor and Industry of a Compensation Judge's advisory report recommending an award of benefits from the Second Injury Fund. This Fund is available for compensation where a worker suffers injuries in a compensable accident, which injuries together with a previous permanent partial disability from some other cause result in total and permanent disability. Since employers are liable only for the disability attributable to the worker's employment, the Fund exists to compensate the worker for the balance of his disability.

Petitioner-appellant, Frank Lewicki, has become totally disabled after an industrial accident. He began working full-time at a foundry at age 16 and, with the exception of military service, spent most of his working life as a foundry man, dealing with powders, chemicals and hot metals to forge metal products. On December 13, 1973, after 25 years of service with the New Jersey Art Foundry, he was filling a "salamander" stove with kerosene when the stove exploded, sending flames into his face. The force of the explosion threw him against the molder's bench, injuring his back and head, and burning the right side of his neck and his right forearm.

Lewicki was taken immediately to Christ Hospital in Jersey City and treated for burns to the face, neck, head and right forearm and injury to the lower back. After his discharge from Christ Hospital, he continued to experience back pain and was

admitted to St. Francis Hospital. A myelogram administered there disclosed a herniated disc which required surgical removal. After his release from the hospital, Lewicki continued to receive back treatment for approximately seven months. He filed a claim against New Jersey Art Foundry with the Division of Workers' Compensation. He also filed a verified petition seeking benefits from the Second Injury Fund pursuant to N.J.S.A. 34:15-94 et seq. The two proceedings were consolidated for trial. At the time of the hearing he had not returned to work.

In his March 16, 1979 decision, the Compensation Judge found that the petitioner was totally disabled, having suffered an aggregate of 77% of total permanent disability and 30% binaural hearing loss as a result of the accident and occupational exposure. He further found that petitioner was disabled to the extent of 10% to 15% for a hypertensive condition which he found preexisted the last compensable accident and which he determined to be the basis for Second Injury Fund compensation.

The judge's advisory report of Fund eligibility was submitted to the Commissioner on May 16, 1979. The Fund denied eligibility and filed exceptions with the Commissioner. On September 13, 1979, the Commissioner rejected the advisory report of the Compensation Judge and dismissed the application for benefits under the Second Injury Fund. The Commissioner found that there was no evidence in the record to support the judge's finding that petitioner's preexisting hypertensive condition was in fact disabling or that it was fixed, measurable and arrested, an asserted requirement for Fund liability. In addition, he found that petitioner had failed to show that his condition had not been aggravated or accelerated by his employment or that, if disabling, it was a causative factor in the overall picture of total and permanent disability.

Petitioner moved to vacate the compensation judgment and allow additional testimony in the Division of Workers' Compensation. He presumably sought to offer further evidence of the

responsibility of the employer or the Fund for the total disability. The Second Injury Fund objected that only the Appellate Division was empowered to review a decision of the Commissioner. The petitioner discontinued the motion and filed a notice of appeal with the Appellate Division.

That court concluded that the findings of the Commissioner were supported by the record. Petitioner failed to prove that the preexisting hypertension constituted a permanent disabling condition, the court stating with regard to the findings of the Judge of Compensation that "the judge's contrary conclusion lacked adequate record support."

Aware of the potential anomaly of contrary findings by the judge and Commissioner and the potential prejudice to a petitioner found to be totally disabled, the Appellate Division remanded the matter to the Compensation Division for a hearing on the applicability of the odd-lot doctrine. It appeared that the petitioner, while not totally disabled, nevertheless might be unemployable because of "handicaps personal to the worker over and above the limitations on work capacity directly produced by his accidental injury. . . ." Germain v. Cool-Rite Corp., 70 N.J. 1, 9 (1976). See Barbato v. Alsan Masonry, 64 N.J. 514, 534 (1974).

We granted the petition for certification, 87 N.J. 315 (1981), because of the contradictory Appellate Division decisions in this case and in Delesky v. Tasty Baking Co., 175 N.J. Super. 513 (App.Div.1980). The Appellate Division in Delesky held that the Commissioner of Labor may not overturn a determination by a Workers' Compensation Judge if his findings are based on sufficient credible evidence in the record.

The role of the Workers' Compensation Judge in cases involving the Second Injury Fund is set forth in N.J.S.A. 34:15-95.1. That statute requires that a claim for Second Injury Fund benefits shall be addressed to the Commissioner, "who shall refer it to a Deputy Commissioner of Workmen's ...


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