The opinion of the court was delivered by BIGELOW, J.A.D.
The respondent, Mrs. Vandenberg, was an employee of the appellant and was the victim of an accident in the course of her employment. A heavy case, which she was taking down from a high shelf, slipped and struck her in the chest, causing a severe bruise. The blow and the shock of the accident aggravated a nervous or mental condition from which she was already suffering. In due course, she filed a petition for compensation and the matter was heard and judgment rendered by the Workmen's Compensation Bureau December 6, 1945. The judgment recited
The first reason for reversal urged is that the County Court erred in refusing to dismiss the appeal for respondent's failure to file the transcript of the record and testimony within time. R.S. 34:15-66. They should have been filed with the County Court by November 28, 1948, but they were not filed until January 2, 1949, a little over one month late. Considering the mental condition of Mrs. Vandenberg and the fact that she was confined at the time in the hospital, we think that the County Judge rightly exercised his discretion in the denial of the motion to dismiss. See Temple v. Storch Trucking Co., 3 N.J. 42 (1949).
Appellant's second point is based on the supposition that in the first proceeding, the Bureau adjudged that petitioner was then permanently disabled to the extent of 50 per
The appellant also argues that the evidence presented to the County Court on the trial de novo early this year, required a finding of a pre-existing 25 per cent disability. The proofs are indeed clear that at the time of, and prior to, the accident, the victim was suffering from a mental condition, variously characterized as a psycho-neurosis, psychosis, schizophrenia, paranoia and dementia praecox. And we may assume that this condition impaired her earning capacity. But where the accident is the proximate cause of the ensuing disability, the workman may recover compensation from the employer even though the disability would not have resulted or would not have been as great, if the workman had been whole and well, or if he was not already handicapped by some physical impairment. Molnar v. American Smelting, etc., Co., 128 N.J.L. 11 (E. & A. 1942). The numerous heart cases in our reports exemplify this rule. See also Granowitz v. Hay Foundry & Iron Works, 9 N.J. Misc. 1165; affirmed, 109 N.J.L. 394 (1932), where the employee had tuberculosis of the spine; Matthews Const. Co. v. Ranallo, 13 N.J. Misc. 878; affirmed, 117 N.J.L. 148 (1936), arthritis; City of Paterson v. Smith, 126 N.J.L. 571 (Sup. Ct. 1941), enlarged prostate gland; Cohen v. Kafer, 130 N.J.L. 146 147 (Sup. Ct. 1943), duodenal ulcer; Cavanaugh v. Murphy Varnish Co., 130 N.J.L. 107; affirmed, 131 Id. 163 (1944),
Compensation in cases where there is a pre-existing partial incapacity, is affected by the statute establishing the "One per cent fund." P.L. 1923, p. 162. It directed that where an employee was totally disabled as a result of two separate compensable accidents, he should be paid out of the fund the difference between compensation for total disability and compensation for the two partial disabilities taken separately. By amendment, P.L. 1936, p. 145, the scope of the act was broadened to include cases where the first disability did not result from a compensable accident and it directed payment from the fund for that part of the compensation for which the employer was not liable. The statute was carefully considered in Richardson v. Essex, etc., Co., 119 N.J.L. 47 (E. & A. 1937). A one-legged employee received an injury to his remaining leg that, considered alone, caused 22% disability, but since he had only one leg, it caused a total disability. The Court of Errors and Appeals adjudged that his employer pay compensation for the 22% partial disability only and that the fund was liable for the remaining 78%. The court discerned a clear legislative intent "not to impose any greater obligation upon an employer who hires or employs a person previously injured than if he had hired a person not so injured." Wittel v. Toohey, 117 N.J.L. 572 (Parker, J., 1937) and Walker v. Albright, 119 N.J.L. 285 (Sup. Ct. 1938), were cases where the employee was already
When an accident arising out of and in the course of employment, produces a total and permanent disability, our law allows to the employee compensation in the same amount and for the same period, whether it was the accident alone that caused the disability, or whether it was the accident in conjunction with a pre-existing condition. And this appears to be the prevailing American view. See 67 A.L.R. 794 and 98 A.L.R. 734. If the one per cent fund is liable for part of the compensation, the employer is relieved to that extent; otherwise, the employer must pay all the compensation to which the employee is entitled. We are satisfied that the pre-existing mental condition of the respondent and any resulting disability that may have existed at the time of the accident, are not a valid basis for denying to her compensation for total permanent disability.
Lastly, appellant urges that the respondent failed to sustain the burden of proving that her mental condition is the result of the accident. The original judgment of the Workmen's Compensation Bureau found that the accident resulted in an aggravation of her pre-existing psycho-neurosis, and that the neurosis as so aggravated, produced or constituted a partial disability. We have already noticed that the appellant admits — or rather urges — that the judgment is conclusive. It is clear that the present insanity of the petitioner is a direct development of the neurosis that existed at the time of the first proceeding and that was referred to in the