Augustin v. Bank Bldg. & Equipment Corp., 99995

• Decision Date: 30 July 1956
• Docket Number: No. 99995,99995
• Citation: 124 A.2d 353,41 N.J.Super. 187
• Parties: Julius AUGUSTIN, Petitioner-Appellee, v. BANK BUILDING AND EQUIPMENT CORPORATION, Respondent-Appellant. . Law Division, New Jersey
• Court: New Jersey County Court

Page 187

41 N.J.Super. 187

124 A.2d 353

Julius AUGUSTIN, Petitioner-Appellee, v. BANK BUILDING AND EQUIPMENT CORPORATION, Respondent-Appellant.

No. 99995.

Essex County Court Law Division, New Jersey.

July 30, 1956.

Emory, Langan, Lamb & Blake, Jersey City (Paul B. Thompson, Montclair, appearing), for respondent-appellant.

Edward J. Abromson, Newark, for petitioner-appellee.

MASUCCI, J.C.C.

This appeal raises the principal issue that the petitioner failed to sustain the burden of proving that the disability which he claimed to have sustained arose out of and in the course of his employment. Since I conclude that this issue is dispositive of the appeal, I will confine myself to a consideration of the facts relating to the primary question of liability.

On October 21, 1954, while the petitioner was working for the respondent on a platform 20 feet high and in the act of lifting a plank to hand down to a fellow employee, he felt a sharp pain in his spine. He stopped working, rested himself and went down and told one of his superiors 'something happened.' The same day he went to an orthopedic hospital where he was treated by Dr. Leeds and X-rays were taken. The following day he returned to work, doing what he referred to as light work only. The following week he returned to the orthopedic hospital and was examined by Dr Smith, the staff doctor, who also examined the X-rays. He then returned to his employment and told the new superintendent that he would not be working the next week because 'I have to go to the hospital, there is something wrong with my back.' The following week he returned to the same hospital and was put in traction and remained in the hospital one day short of two weeks. Because he was getting bad pains from the spine down to his legs, he was again required to return to the hospital in January A.D. 1955. Myelograms were taken by Dr. White indicating an operation was necessary which was performed on the fourth lumbar disc. As an aftermath of the operation the petitioner required treatment and an operation by Dr. Burpean, an urologist.

The hospital records of the New Jersey Orthopedic Hospital Clinic covering petitioner's treatment and operations were by mutual offer of both petitioner and respondent received in evidence and marked exhibit 'P-R-1.'

The petitioner was involved in a prior accident in 1934 or 1935 for which he received workmen's compensation of approximately $1,000. As a result of these injuries he felt occasional pains in the back but he claims that the pains were different from the pains he felt after the incident of October 21, 1954 in that he now felt sharp pains from the back going down his leg sometimes even causing him to jump in the air from the sharpness of the pain. His pains prior to October 21, 1954 were dull and came for one or two days, then stayed around for three or four months, sometimes a year.

As against the above facts the petitioner frankly admitted that when he went to the Orthopedic Hospital in October 1954 he stated to the doctor that he had pain over the left buttock with left sciatica for three months prior thereto and had twisted his back at the onset. The pain was cramping in nature and there was some sensory loss over the lateral aspect of the left leg. On November 1, 1954, when he was admitted to the hospital and was under the care of Drs. Jarvis Smith and Eugene White, he again told the doctors that about three or four weeks before he began having left buttock pain which radiated through his left thigh and calf to the ankle and that any flexion or motion of the left hip or back increased the pain.

Again the petitioner admits that some ten days after November 1, 1954, accompanied by his daughter, he spoke to Mr. Meyers, the general supervisor, and brought with him a New Jersey sickness benefit card and told him that New Jersey refused to pay him his disability benefits. He admitted that he knew that you can only get disability benefits when you are sick and that you receive compensation benefits when you get hurt on the job, and that he knew the difference between the two. He stated that he failed to get sickness benefits from the State because the respondent had its own private plan. He was referred to respondent and received sickness disability benefits for 26 weeks.

On October 29, 1954 he saw Mr. Meyers, the general supervisor, and told him he would have to go to the hospital because there was something wrong with his back. He did not recall if he told him that he was injured on the job either at that time or when he applied for sickness disability benefits.

Petitioner further admitted telling Dr. Ehrlich that for two days prior to the incident he had back pains.

In exhibit 'R2' signed by the petitioner in answer to question No. 9, 'Describe your disability and state how and where it occurred,' he replied 'At home.' In answer to question No. 17, 'Nature and cause of this disability which prevents claimant from working,' he stated, 'Degenerate--disk L5, S1--left,' and question 18, 'Do you think this is a Workmen's Compensation case?' was answered by the petitioner placing a cross over the block containing the word 'No.'

When the petitioner was asked to explain his answer to No. 9 above, he stated in court, 'That is the time I felt the pain, at home, severe pains.'

After admitting that he knew the accident had happened on the job on October 21, 1954 the petitioner was asked why he had stated it was at home, and he answered, 'I don't know.'

After some leading and suggestive questions by his counsel he stated that it was at the suggestion of the union's business agent because he was told he would get more from the carpenter's welfare fund than from the State.

Dr. Philip Willner, accepting the petitioner's claimed symptoms, including his subjective symptoms of October 21, 1954, found that the incident on this date was causally related to the petitioner's condition and aggravated his disability.

Dr. Ehrlich gave his opinion that with petitioner's history of sufering from a back disc extending for a period of many years, 10, 15 or 20 years, but never becoming acute, the disc could slip and become herniated into an acute stage without any incident at all as far as working was concerned.

Dr. Willner said that a normal degeneration could possibly bring about the same condition.

Dr. White, who operated on the petitioner at the Orthopedic Hospital, agreed with Dr. Willner as to the causal relationship between the incident of October 21, 1954 and the petitioner's aggravation of his back condition. However, again the history under which the petitioner was treated by Dr. White and his certificate state among other things that the petitioner 'was suffering from a degenerated intervertebral disc, L-5 and S-1 left' and that he did not think this was a workmen's compensation case. His attempted explanation is very weak and is not persuasive, nor does it satisfactorily explain away the gross contradiction.

It is urged by the petitioner that this court must give due regard to the opportunity of the deputy director to judge the credibility of the witnesses. Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, 80 A.2d 125 (App.Div.1951).

Due consideration must be given to the deputy director's opportunity to judge the credibility of the witnesses but it is still the duty of this court, under the authority of R.S. 34:15--66, N.J.S.A., to consider the appeal as a trial De novo on the transcript of the record and testimony, and to make its own findings of facts and conclusions of law. Gaeta v. Scott Paper Co., 14 N.J.Super. 261, 81 A.2d 808. (App.Div.1951). Gagliano v. Botany Worsted Mills, supra (13 N.J.Super. 1, 80 A.2d 128), cited by petitioner, is not to the contrary. It...