ity, the court saying that it would be a strain upon credulity to believe that a man able to earn $28 would malinger to get $10 per week. Id. Permanent Disability. Where the evidence is uncontradicted that by an operation the workman could be relieved from any effect of the injury, there should be no compensation for permanent disability. Hanglin v. Swift & Co., 37 N. J. L. J. 81. But see page 62. The burden of proving permanent injury is upon the employe or his representative. Vishney v. Empire Steel and Iron Co., 37 N. J. L. J. 217. In Nevich v. D. L. & W. R. R. Co., 90 N. J. L. 228, 100 Atl. 234, the evidence was considered as justifying the inference that the accident produced total disability. In Glaab v. McEwan Bros., 40 N. J. L. J. 273, a claim of present nervous inefficiency to the extent of 1/3 normal strength was held unsupported by the evidence. In Rustochinsko v. The W. A. Clark Wire Co., 40 N. J. L. J. 148, a claim for an eye injury was held supported by evidence. Id. Unreasonable Refusal of Operation. The burden of proving refusal to consent to an operation is unreasonable is upon the employer. McNally v. Hudson & Manhattan R. R. Co., 87 N. J. L. 455, 95 Atl. 122, 88 N. J. L. 729, 96 Atl. 293. See page 12 for notes on "Effect of Refusal of Operation." Id. Interstate Commerce. The burden is on the claimant to show that employe was not engaged in interstate commerce. Lincks v. Erie R. R., 103 Atl. 176. Award. In General. If a workman in crossing an aisle in a factory sustains injury by an accident, he is entitled to recover if he was crossing the aisle in pursuance of his duty; if on business of his own or for pleasure, he is not entitled to recover. Vreeland v. Cogswell, 37 N. J. L. J. 57. When it is impossible for an accident to occur in a way alleged by the petitioner, he should not be allowed to recover. Predale v. Berntz, 37 N. J. L. J. 60. In a case where a workman was injured about the eyes, and the evidence did not establish that there was any permanent disability, but did show that there existed a form of conjunctivitis which would require three months' treatment to cure, the award should be for three months' temporary disability, leaving the petitioner the right to apply for a rehearing in the statutory time. Vishney v. Empire Steel and Iron Co., 37 N. J. L. J. 217, reversed award should have been on basis of permanent disability, 87 N. J. L. 481, 95 Atl. 143. Id. Credits in. If an employer furnishes medical services in excess of the amount allowed by the act, he cannot have such payments set off against the compensation; if he has any way of recovering it is by action at law for such payments. Dikovich v. American Steel and Wire Co., 36 N. J. L. The award should give the employer credit for payments during a certain number of weeks of the amount named by the statute when such payments were made by the employer or by an insurance company by virture of a policy the premium of which was paid by the employer, but no credit should be given if the payment was by an insurance company by virture of a policy the premium of which was paid by the workman. Barbour Flax Spinning Co. v. Hagerty, 89 Atl. 919, 85 Award should give employer credit for the sum he has already paid employe. Loughman v. Home Brewing Co., 36 N. J. L. J. 113, No credit can be given in award for payments in excess of the amount allowed by statute for medicines and medical and hospital services during first two weeks. Johnson v. Prendergast et al., 37 N. J. L. J. 277. Blackford v. Green, 87 N. J. L. 359, 94 Atl. 401, 89 N. Nor can credit be given for money paid as wages, that is, paid for labor. De Zeng Standard Co. v. Pressey, 86 N. J. L. 469, 92 In Blackford v. Green, 87 N. J. L. 359, 94 Atl. 401, 89 N. J. L. 357, 100 Atl. 1069, it was said of weekly payments of $10 after the first two weeks, the compensation due under act being $5: "While he (trial judge) might have found that the subsequent payments were made as compensation for the petitioner's labor, or as a gratuity from benevolent motives it was a fair presumption that they were made in discharge of the legal liability, so far as there was such liability, and that payments in excess of that liability were either compensation for labor or benevolence." See also "Receipt of Benefits," page 130. Judge's Determination and Findings. Must State Facts on Which Determination Is Based. The determination and finding of the judge should state in detail the character and extent of the injury and the method of arriving at the award. On certiorari a statement of the testimony is no substitute for such a finding, and the judgment will be reversed where such matters are not stated in the determination. Long v. Bergen County Court of Common Pleas, 86 By one construction this paragraph requires "the statement of facts as determined by the trial judge" to be contained in the judgment; by another construction it requires it to be contained in the judge's determination. Clearly the intent is that the judgment in every phase shall be sup ported by a specific finding of fact which may be submitted to and considered by a court of review. N. Y. Shipbuilding Co. v. Buchanan, 87 Atl. 86, 84 N. A finding in the determination that the injured "has 'received and is now suffering from a disability partial in character and permanent in quality" without stating what the injuries were, is insufficient. Long v. Bergen County Court of Common Pleas, 36 The determination must contain findings showing (1) injury or death by accident, (2) arising out of, and (3) in the course of the employment. Dunnewald v. Steers, Inc., 89 N. J. L. 601, 99 Atl. 345. And where the defense is engagement in interstate commerce it must also show that the accident was not in interstate commerce. Brinko v. Lehigh Valley R. R. Co., 90 N. J. L. 658, 102 Atl. 390. The trial judge is under no legal duty to make an express finding negativing the assertion of the defendant that the deceased was intoxicated at the time he received his injuries and that such intoxication proximately caused his injuries and death. Such a negative finding is included in and will be presumed from the finding that the accident arose out of and in the course of the employment. Napoleon v. McCullough, 89 N. J. L. 716, 99 Atl. 385. The determination of no factor can be put over to some indefinite period or to await some uncertain event. D. V. G. Mfg. Co. v. Sorrentino, 103 Atl. 190. Id. Division of Compensation among Dependents. In the absence of specific application the determination need not state the proportion of compensation payable to various dependents. Taylor v. Seabrook, 87 N. J. L. 407, 94 Atl. 399. Id. Time for Filing. Thirty-Day Provision Directory Merely. The provision that the determination shall be filed within thirty days by the Common Pleas judge has been held directory merely. Diskon v. Bubb, 88 N. J. L. 515, 96 Atl. 660. Id. On Certiorari Insufficient Determination Results in Reversal of Judgment. Evidence Not Examined. The Supreme Court should not on certiorari enter upon an investigation of the evidence for the purpose of determining whether it would have been possible for the trial judge to find therefrom the facts necessary to support the judgment. When it appears that there has been no finding respecting the essential facts by the trial court, the Supreme Court should send the case back for a new trial and proper determination of facts either upon the present evidence or upon such as the parties see fit to put in. The reason for this is that in such a proceeding the proper function of the Supreme Court is solely to review questions of law. Dunnewald v. Steers, Inc., 89 N. J. L. 601, 99 Atl. 345. Id. Trial Judge Out of Office at Time of Reversal. New Trial. If the trial judge has gone out of office at the time a case is reversed, the case must be re-tried, unless the parties agree to submit it on the evidence already taken. West Jersey Trust Co. v. P. & R. R. Co., 88 N. J. L. 102, 95 Atl. 753. Long v. Bergen Common Pleas, 84 N. J. L. 117, 86 Atl. 529. Where no commutation is applied for by either party the judgment should be entered for the number of dollars to which the weekly compensation amounts for the number of weeks the compensation is to run, as, for example, $5 for 300 weeks and not for $1,500. Muzik v. Erie R. Co., 89 Atl. 248. |