Buzza v. General Motors Corp., Linden Plant

• Decision Date: 21 March 1958
• Docket Number: No. A--520,A--520
• Citation: 139 A.2d 790,49 N.J.Super. 322
• Parties: Frank BUZZA, Petitioner-Appellant, v. GENERAL MOTORS CORPORATION, LINDEN PLANT, Respondent-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 322

49 N.J.Super. 322

139 A.2d 790

Frank BUZZA, Petitioner-Appellant, v. GENERAL MOTORS CORPORATION, LINDEN PLANT, Respondent-Respondent.

No. A--520.

Superior Court of New Jersey Appellate Division.

Argued Nov. 12, 1957.

Decided March 21, 1958.

Louis C. Jacobson, Newark, argued the cause for petitioner-appellant (Jay Spielman and M. Marvin Soperstein, Newark, attorneys).

Carl S. Kuebler, Jersey City, argued the cause for respondent-respondent (Carpenter, Bennett, Beggans & Morrissey, Jersey City, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Both the Division of Workmen's Compensation and the Union County Court on appeal determined this workmen's compensation case adverselyto the petitioning employee. The claim was for a hernia alleged in the petition to have occurred November 8, 1955 at the respondent's plant at Linden.

Petitioner was hired by respondent on November 8, 1955. The previous day he had received and passed a pre-employment physical examination. His job was to lift heavy fenders from conveyors and put them on other conveyors. He testified that on his very first day of work, while picking up fenders, he 'felt sharp pains i( (his) groin.' He did not stop work then but told the foreman that the job was too heavy for him and that he 'didn't feel good.'

Petitioner testified on cross-examination that on the night of November 8 he noticed a lump in his left groin and was doubled up with severe pain; that he then knew 'there was something wrong there then'; and that the lump would reappear whenever he worked. On November 10 he went to the company nurse but did not tell her about the pains in his groin, merely that he had a headache. The pass signed by the foreman stated that petitioner had a headache. The nurse gave him an aspirin. On redirect examination he intimated that embarrassment prevented him from disclosing the nature of his symptoms to the nurse. Despite his complaint concerning heavy work, he was told by the foreman that there was no other job for him to do; so he continued working the remainder of the week, that is, until November 11, when he quit.

Petitioner endeavored to find employment at Dugan Brothers on November 14. Dugan Brothers' doctor told him to see his own doctor. The next day he went to his own doctor, Dr. Giannotto, who, after examination, advised him that he had a hernia. The following day, November 16, petitioner went to see respondent's plant doctor, Dr. Young, and told him that he 'got hurt on the job,' but the doctor, after an examination, told him that he had no hernia. He returned to the Dugans' physician, who reexamined him and reaffirmed the conclusion of hernia. Petitioner gave testimony establishing that he still has a hernia and wears a truss while working. On redirect examination he expressly testified that he did not know he had a hernia until he saw his own doctor on November 15.

It is conceded by respondent for the purposes of this appeal that petitioner sustained a hernia on November 8 which was causally related to his employment by respondent and that notice was given to the respondent on petitioner's visit to the plant doctor on November 16.

At the close of the petitioner's testimony and before the introduction of any medical proofs the Deputy Director dismissed the petition on motion on the sole ground that petitioner failed to give notice t his employer within the period prescribed by N.J.S.A. 34:15--12(c)(23) (formerly section 34:15--12(x)); i.e., 'within 48 hours after the occurrence of the hernia.' The basis for the conclusion was stated as follows:

'Whether he knew that he had an hernia or not, he was put on notice that something was wrong when he had that pain in the groin and specially when the lump appeared on the night of the eighth of November. Whether he knew or did not know there was an hernia is immaterial. The Statute uses the word 'occurrence' rather than 'knowledge'. The petition will, therefore, have to be dismissed.'

The County Court concurred in the dismissal of the petition on two grounds: (a) that petitioner's testimony did not credibly establish an accidental hernia connected with the employment, and (b) that, assuming petitioner sustained a traumatic hernia.

'he knew or had reason to know of it on the night of November 8, 1955, but on any reasonable interpretation of the evidence and any reasonable view of human behavior, consistent with his duty to give notice, he failed to comply with the statute no matter how liberally we may construe its provisions.'

I.

On the present appeal petitioner argues that the sttaute should be construed not to cause the running of the 48-hour notice period until the employee has knowledge of the fact that he has an employment-caused hernia. This he contends did not occur in his case until his own doctor told him he had a hernia, which was on November 15, 1955, and he reported the matter to the respondent the next day. He relies on Minardi v. Pacific Airmotive Corp., 43 N.J.Super. 460, 129 A.2d 51 (Cty. Ct., 1957).

The minardi case does not help petitioner, even if regarded as correctly decided. There the workman felt a sharp pain in his side while lifting crates May 7, 1955. He thought it was 'a gas pain or something' and continued working after a short rest. He continued to work until May 19, 1954, when he was laid off. He discovered he had a hernia on May 28, 1954 and at that time notified the respondent. There does not appear to have been any direct proof as to when the hernia, or breach of the abdominal wall, actually occurred. The Union County Court, applying the analogy of the rule in Panchak v. Simmons Co., 15 N.J. 13, 103 A.2d 884 (1954), held that the statute is to be construed to require that notice of a traumatic hernia should be given within 48 hours 'after the hernia became manifest; that is, within 48 hours of the time that--by the exercise of reasonable care and diligence--it is discoverable and apparent that a compensable injury has been sustained.' (43 N.J.Super. 460, 129 A.2d 55.) Notice was there held given in time, the mere pains on May 7, 1955 not constituting such a manifestation of the condition. Even if the reasoning of the Minardi case is accepted as sound statutory construction, it bars the present petitioner's claim. His hernia was perfectly manifest to him during the night of November 8, 1955, at the latest. He was doubled up with pain in the groin and felt a lump in that area, which he knew indicated something was wrong there. These are classical symptoms of inguinal hernia. The reappearance of the lump whenever he worked was additionally corroboratory of the condition.

In the Panchak case, supra, involving construction of the general notice provision of the act, R.S. 34:15--17, N.J.S.A., the court held that the notice period does not begin to run until the employee knows or has reason to know that he has a compensable injury.

The mere circumstance that petitioner was not apprised of the technical fact that he had a hernia, as such, cannot prevent the legal imputation to him of such knowledge concerning his condition as is reasonably atributable, imputing to him such general intelligence and capacity for knowledge as a person of his general background may be expected to have. Cf. Bucuk v. Edward A. Zusi Brass Foundry Co., 49 N.J.Super. 187, 139 A.2d 436 (App.Div.1958).

In our view, accordingly, conceding for the purpose of the present discussion the applicability of the Panchak rule to a hernia case, this petitioner, beyond the possibility of any reasonable factual conclusion to the contrary from the evidence adduced on his own case, knew or had reason to know that he had a traumatic hernia, if indeed he sustained such a hernia on November 8, 1955, as claimed, well in advance of 48 hours prior to his apprising the respondent of the claim. In other words, we conclude that the finding by the County Court on this issue was not only a proper one but the only finding justified from the testimony. On the basis of this determination it makes no difference that the dismissal took place at the conclusion of petitioner's case, rather than after hearing both sides. See Cierpial v. Ford Motor Co., 16 N.J. 561, 109 A.2d 666 (1954).

We note, in passing, that the Supreme Court has not hitherto expressly considered whether R.R. 4:42--2(b) should not be given the full effect indicated by its language, to the end that in a case tried without a jury, on a motion for dismissal by the defendant at the end of the plaintiff's case, the court as trier of the facts may, if it chooses to do so, determine the facts on the merits at that time and enter judgment in favor of the defendant accordingly, rather than follow the rule generally applied in jury cases of giving the plaintiff the benefit of all facts and inferences in his favor on such a motion. See Cauco v. Galante, 6 N.J. 128, 77 A.2d 793 (1951); Kolberg v. Kolberg, 16 N.J.Super. 413, 414--415, 84 A.2d 764 (App.Div.1951); Ptak v. General Electric Co., 16 N.J.Super. 573, 575, 85 A.2d 214 (App.Div.1951); 5 Moore, Federal Practice (2d ed. 1951), par, 41.13(4); Huber v. American President Lines, 240 F.2d 778 (2 Cir. 1957); cf. Kahn v. Massler, 241 F.2d 47 (3 Cir. 1957). The jractice rule appears to make sense in that it eliminates waste motion and encourages prompt conclusion of non-jury cases where the evidence so warrants. The Cierpial case, supra, apparently assumes that whatever is the appropriate practice in the law courts in this regard is equally applicable before the Division of Workmen's Compensation.

Moreover, continuing the assumption that the Panchak case controls as to the rule of notice, but assuming, contrary to our factual determination hereinabove, that the factual proofs on the issue are not so conclusive as to require a determination thereon in favor of the respondent as a matter of law, we would be inclined, in the present...