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Andrejcak v. Elmora Bake Shop

Decided: February 2, 1982.

GERALD ANDREJCAK, PETITIONER-APPELLANT,
v.
ELMORA BAKE SHOP, RESPONDENT-APPELLEE



On appeal from New Jersey Department of Labor and Industry, Division of Workers' Compensation.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

On February 23, 1973 petitioner was involved in an automobile accident while making a delivery for his employer. Petitioner was taken to Rahway Hospital where Dr. Shutello, orthopedic surgeon on duty, treated him for a severe fracture of the right hip. Traction did not reduce the fracture and Dr. Shutello eventually operated to pin it. Petitioner was discharged from the hospital on March 17, 1973. He went to Dr. Shutello for a follow-up visit on March 26, 1973.

On March 29, 1973 petitioner filed a claim petition with the Division of Workers' Compensation.

Petitioner continued under Dr. Shutello's care. There were six additional office visits in 1973 and five in 1974. In 1974 Dr. Shutello performed two more operations, one to remove the pin and the other to remove a bony mass that developed in the fracture area. Dr. Shutello saw petitioner three times in 1975 and on the last of those visits, August 5, 1975, discharged petitioner, instructing him to return on an "as needed basis."

Respondent's insurer paid Dr. Shutello for services rendered to petitioner until May 1975.

On September 11, 1975 Dr. Shutello advised respondent that petitioner's prognosis was guarded. He received no authorization from either respondent or its insurer to provide further treatment, but he testified that he "assumed that it was a continuum service for the same problem."

Petitioner continued under Dr. Shutello's care; office visits were made on April 30 and May 15, 1976, x-rays were taken during the former visit.

On May 27, 1976 a hearing was conducted on petitioner's claim. Sometime prior to this hearing (the record does not reflect the date) petitioner recovered $100,000 from a third-party claim arising from the same accident.

The judge of compensation approved the following settlement: temporary disability for 135 3/7 weeks at $108 a week, totaling $14,626.29; permanent disability for 220 weeks at $40 a week, totaling $8,880; medical expenses, $6,382.20. Respondent's obligations totaled $29,808.49, but respondent had previously paid $22,328.48 in total satisfaction of the medical bills and the temporary disability award, and in partial satisfaction of the permanent disability award. $7,480 in permanent disability was unpaid. At $40 a week petitioner was entitled to receive permanent disability payments for 187 weeks, or 3.59 years.

Petitioner's third-party recovery, however, affected payment of the workers' compensation award. Because petitioner recovered $100,000, expending 20% of that amount in counsel fees, respondent's liability was limited to $5,961.70. See N.J.S.A. 34:15-40. Respondent was entitled to reimbursement in the amount of $16,366.79. Petitioner previously had reimbursed respondent in the amount of $14,578.99 and still owed $1,787.80. Apparently as part of the settlement, petitioner was not required to repay this amount. The judge of compensation explained: "You won't be getting anything here."

According to petitioner's application for modification, final payment of compensation under this award was made on July 4, 1976. There is no other ...


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