Augustin v. Bank Bldg. & Equipment Corp., A--45

Citation130 A.2d 70,44 N.J.Super. 242
Decision Date21 March 1957
Docket NumberNo. A--45,A--45
PartiesJulius AUGUSTIN, Petitioner-Appellant, v. BANK BUILDING AND EQUIPMENT CORPORATION, Respondent-Respondent. . Appellate Division
CourtNew Jersey Superior Court – Appellate Division

Edward J. Abromson, Newark, argued the cause for appellant.

Paul B. Thompson, Montclair, argued the cause for respondent (Emory, Langan, Lamb & Blake, Jersey City, attorneys.)

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Petitioner, Julius Augustin, was granted an award by the Division of Workmen's Compensation on account of a back disability adjudged to have resulted from an accident arising out of and in the course of his employment. The County Court reversed holding that such an accident had not been proved. 41 N.J.Super. 187, 124 A.2d 353 (Cty.Ct.1956). The diverse judgments in the two tribunals resulted from differing views as to Augustin's credibility.

A first and guiding principle in our review of these cases is that great weight must be given to the judgment of the County Court. Although the authority to make independent findings of fact cannot be doubted, we do not exercise it unless from our study of the record the interests of justice plainly call for a reversal. Jensen v. Wilhelms Construction Co., 18 N.J.Super. 372, 87 A.2d 365 (App.Div.1952); Donofrio v. Haag Brothers, Inc., 10 N.J.Super. 258, 77 A.2d 42 (App.Div.1950); R.S. 1:5--4(b).

The basis of Augustin's claim for compensation is that on October 21, 1954, while working for his employer, Bank Building and Equipment Corporation, as a carpenter he injured his back. More particularly, he says that while lifting a plank weighing 70 or 80 pounds he felt a sharp pain in his spine. He rested a while; around noon he told the foreman that 'something happened, I hurt my back,' and that he was going to the hospital. After looking unsuccessfully for the superintendent, he drove to the hospital. At that time he had worked for the respondent since September 29, 1954. Prior thereto he had been employed by another construction company off and on for a number of years, the last period ending September 1, 1954.

Augustin was 68 years of age when the hearing took place. The record reveals him to be an intelligent, articulate and perceptive man. He had graduated from high school in Europe and had studied architecture in this country. He was on the witness stand before the doctors and he exhibited an easy familiarity with many medical terms which were relevant to his physical condition and its treatment. Moreover, he was aware of the difference between workmen's compensation claims and claims for sickness benefits and the basis for recovery in each case. In fact, in 1934 or 1935 he had sustained a back injury while working for another employer and had recovered workmen's compensation for it. Since then his back had bothered him off and on; '(i)t came first one or two days, then it stayed around for three or four months, sometimes a year.' In 1939 he made another recovery of workmen's compensation for a head injury received while working at the World Fair; in 1930 or 1933 he was struck by a trolley car and hospitalized. At this time he was treated for a stomach injury and his appendix was removed.

It was with this background of experience that he selected and drove himself to the New Jersey Orthopedic Hospital in Orange. On arrival, in spite of the fact (as he now claims) that the had just injured his back at work, he gave this history:

'Pain over left buttock with left sciatica for three months. Twisted his back at onset * * *.'

X-rays taken that day demonstrate that he had back pathology of long standing. There was 'marked osteoarthritic lipping of the lumbar vertebral bodies especially (at the second and third lumbar vertebrae). * * * The sacroiliac joint spaces (were) partially obliterated by degenerative arthritic changes.' Apparently he was referred to the back clinic.

Work was resumed the next day. It was described as light work and was continued until November when he was admitted to the hospital. Prior thereto he had visited the back clinic on October 27; the record notes that he showed 'numerous changes in his low back', and 'in view of the persistence of symptoms he should be admitted for traction, physio, etc.'

On the November 1 admission, part of history noted in quotes is 'Pain in my left buttock, thigh and calf of many years duration.' The personal history then continues:

'This patient Is employed as a carpenter and has had recurrent back pain of a few days duration for 10 years or more. About 3 or 4 weeks ago he began having left buttock pain which radiated into his left thigh and calf to the ankle. Any flexion motion of the left hip or back increased the pain as did coughing. Lying flat in bed and heat relieved the pain. He has had an occasional limp on the left.'

Examination also showed some slight atrophy of the left thigh and calf. At this time the impression of the examing physician was that the patient was suffering from a hereniated intervertebral disc between the fourth and fifth lumbar vertebrae.

At no time did Augustin make any reference at the hospital to an employment accident although there were references to his work. Also, on October 31, his last work day before the hospitalization, he told the foreman that he would not be back because there was something wrong with his back and he had to go to the hospital.

On November 1, obviously immediately upon his entry to the hospital, he executed an application for sickness benefits to be paid by the State of New Jersey. Question 9 of this form is as follows:

'Describe your disability and state How and Where it occurred:'

His answer was: 'at home'.

Then question 11, which is marked 'Workmen's Compensation,' says:

'If this disability arose out of and in the course of your employment have you filed or do you intend to file a claim for workmen's compensation?

He answered in the negative. At the hearing he said the sickness claim was made on the advice of his union agent.

A medical certificate form appears at the bottom of this application. It was completed on November 12 by Dr. E. A. White, one of the physicians attending him at the hospital. The doctor described the condition under treatment as a 'degenerated' intervertebral disc 'L5--S1 left.' And in answer to the question: 'Do you think this is a Workmen's Compensation case?' he answered 'No'.

During this period of hospitalization which lasted until November 12, Augustin was placed in traction. On the date of discharge, Dr. White noted: 'Complete relief of symptoms on conservative therapy. Discharged wearing garment. Final diagnosis: Probable herniated intervertebral disc, L4--L5, left.'

Although the record is not entirely clear as to just when the action occurred, it does appear that the State declined to pay sickness benefits for which the application had been made, advising him that his employer had provided such benefits under a private plan. So he returned to the respondent's place of work and told the superintendent that he wished to apply for these benefits. Subsequently they were paid for a period of 26 weeks.

On January 3, 1955 petitioner was readmitted to the hospital. This time his history was a little different. He said he 'started having pain in his low back last October.' But there was still no reference to an employment incident nor any suggestion that the onset of the pain was at work rather than at home, although he said again that he 'works as a carpenter.' Myelograms were taken which revealed a herniated disc between the fourth and fifth lumbar vertebrae. Operation followed for excision of the disc. On January 24 he was transferred to the Orange Memorial Hospital because some prostate trouble had...

To continue reading

Request your trial
14 cases
  • Ricciardi v. Marcalus Mfg. Co.
    • United States
    • New Jersey Supreme Court
    • 3 Abril 1958
    ...compensation cases great weight must be given to the judgment of the County Court. See Augustin v. Bank Building and Equipment Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957). We think this principle applies here, notwithstanding we find the ruling in the Division of no value beca......
  • Crotty v. Driver Harris Co., A--651--56
    • United States
    • New Jersey Superior Court — Appellate Division
    • 17 Febrero 1958
    ...our study of the record indicates that the interests of justice plainly call for reversal. Augustin v. Bank Building and Equipment Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957); Martin v. Snuffy's Steak House, 46 N.J.Super. 425, 431, 134 A.2d 789 (App.Div.1957). But, as was said......
  • Martin v. Snuffy's Steak House, A--330
    • United States
    • New Jersey Superior Court — Appellate Division
    • 2 Octubre 1957
    ...them unless satisfied from our reading of the record that the interests of justice so require. Augustin v. Bank Bldg. & Equip. Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957); Donofrio v. Haag Bros., Inc., 10 N.J.Super. 258, 262, 263, 77 A.2d 42 (App.Div.1950). We conclude that th......
  • Bucuk v. Edward A. Zusi Brass Foundry
    • United States
    • New Jersey Superior Court — Appellate Division
    • 4 Marzo 1958
    ...this court. Ricciardi v. Marcalus Mfg. Co., 47 N.J.Super. 90, 101, 135 A.2d 339 (App.Div.1956); Augustin v. Bank Bldg. and Equipment Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957). Our concurrence in this finding makes it unnecessary to make a determination as to the other necess......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT