Bottari v. Fed. Shipbldg. & Dry Dock Co.
| Decision Date | 22 May 1947 |
| Citation | 53 A.2d 218 |
| Parties | BOTTARI v. FEDERAL SHIPBUILDING & DRY DOCK CO. |
| Court | New Jersey Court of Common Pleas |
OPINION TEXT STARTS HERE
Appeal from Workmen's Compensation Bureau.
Proceeding under the Workmen's Compensation Act by John Bottari, petitioner, opposed by the Federal Shipbuilding & Dry Dock Company. From an award of the Workmen's Compensation Bureau denying compensation, the petitioner appeals.
Affirmed.
Albert A. Sann, of Jersey City (Aaron Gordon, of Jersey City, of counsel), for petitioner-appellant.
James J. Skeffington, of Newark, for respondent-appellee.
JOHN DREWEN, Common Pleas Judge.
Petitioner was a shipfitter's helper in respondent's employ. The accident, which is alleged to have befallen him on August 1, 1945, is described in the claim petition as follows: ‘While butting steel plates, petitioner felt a severe pain over the region of his heart, he became distressed with weakness and felt faint and short of breath.’ The resulting injuries are claimed to be ‘Arteriosclerotic heart, cardiac hypertrophy, auricular fibrillation, left ventricular failure.’
For all that appears in the petition, as well as in petitioner's proofs, the claim here is not for an aggravation of a pre-existing condition but for an original injury. Nothing in the evidence justifies our viewing it as other than a claim for original injury. Indeed, it is the emphasis of petitioner's proof that any other theory of his claim is to be rejected, for he would maintain even in the face of the strongest contrary evidence that there has been no pre-existing condition. This is the issue: Was there an accident; and if so, is it the cause of petitioner's present incapacity? It is not disputed that he is suffering from a heart ailment and that his disability is total.
An accidental happening is vouched for by the testimony of petitioner alone; there is no corroboration in any form. His immediate superior testifies that he recalls no such event; and petitioner himself is shown to have admitted to one of respondent's physicians that the illness experienced by him at the time and on the day in question was not coincident with an injury. In his testimony he says: The pain described is said to have been felt ten minutes after he started to fit the plates, and he amplifies his description by saying: He says he cannot work; that he cannot climb stairs; that he is ‘all out of breath’; that his heart beats too fast; that his ankles swell up; that he cannot stand for any length of time. In his first reference to the subject as a witness in the hearing petitioner declares that the condition he describes had never been experienced by him prior to the accident alleged and that until then he had been in continuous good health. As will be seen, his testimony in this respect does not hold.
Such testimony as there is that an accident occurred is most unsatisfactory. As already stated, it is entirely uncorroborated, though that alone could not defeat its credibility. More important are the contradictions with which petitioner is confronted and quite unable to reconcile. It cannot be doubted upon the whole record that prior to August 1, 1945, the date on which the injurious mishap is said to have occurred, petitioner was a cardiac patient complaining of the very symptoms and ills which he would now have the court determine resulted solely from an accident. It appears that prior to the date in question petitioner had consulted his own physician, a Dr. DeVito of Brooklyn, New York City. He first insisted that this recourse to Dr. DeVito was after August 1, 1945, though later he admits it was prior.
During a considerable period preceding August 1, 1945, petitioner made frequent visits to respondent's First Aid Station which he says were occasioned by the need of eye treatment following welding flash. The last of these visits took place on July 28 or July 29, 1945. At any rate, on the latter date he made a statement in writing which in the course of his testimony he acknowledges. He then complained of a swelling in the leg but ascribed it to a bump received during his work a year before, but which he says he did not report. It is in the same statement that he admits the prior examination by his own physician, Dr. DeVito, and the advice of the doctor that he go to the hospital for treatment of a heart condition. Petitioner states further that the doctor told him the leg swelling was caused by the...
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