Celeste v. Progressive Silk Finishing Co.

• Decision Date: 01 February 1962
• Docket Number: No. A--370,A--370
• Citation: 178 A.2d 74,72 N.J.Super. 125
• Parties: Nicola CELESTE, by Catherine Celeste, his Widow, Petitioner-Respondent, v. PROGRESSIVE SILK FINISHING COMPANY, Respondent-Appellant. Catherine CELESTE, Petitioner-Respondent, v. PROGRESSIVE SILK FINISHING COMPANY, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 125

72 N.J.Super. 125

178 A.2d 74

Nicola CELESTE, by Catherine Celeste, his Widow, Petitioner-Respondent, v. PROGRESSIVE SILK FINISHING COMPANY, Respondent-Appellant.

Catherine CELESTE, Petitioner-Respondent, v. PROGRESSIVE SILK FINISHING COMPANY, Respondent-Appellant.

No. A--370.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 13, 1961.

Decided Feb. 1, 1962.

Isidor Kalisch, Newark, for appellant.

Aaron Gordon, Jersey City, for respondent (Schwartz & Horowitz, Jersey City, attorneys; Aaron Gordon, Jersey City, of counsel).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an appeal from a judgment of the Hudson County Court which affirmed an award of compensation by the Division of Workmen's Compensation to the petitioner, Catherine Celeste, for the injury and subsequent death of her husband, Nicola, arising out of and in the course of his employment.

On this appeal we have made our own independent study and analysis of the record 'to determine the facts and evaluate them.' Russo v. United States Trucking Corp., 26 N.J. 430, 435, 140 A.2d 206, 209 (1958). The sole ground of appeal is that petitioner failed to sustain the burden of proving that decedent suffered an accident which contributed to and hastened his death from cancer.

Petitioner's evidence was composed of exhibits, her own testimony and that of her son Nicholas Celeste, Jr., Louis Mastrofino, and Doctors Charles J. Modero, Dominick A. Mauriello, Leo Horowitz and Saul Lieb.

On September 7, 1955 Nicola Celeste, 47 years of age, was employed as operator and beamer by respondent Progressive Silk Finishing Co. (Progressive) of Hoboken, N.J. At 10 o'clock that morning he and Mastrofino, a co-worker, each lifted one end of a roll of bengaline dress material in order to place the roll on a machine. As they were setting it into place, Celeste suddenly said, 'My back hurts, Lou.' Mastrofino urged him to drop the roll which he did. Within a matter of minutes Mastrofino and Celeste reported the injury to Andrew Clemente, a plant superintendent. Mastrofino described the material as 41 inches wide and rolled on a 52-inch-wide shell; a bar or pipe extended through the roll and was used to lift the goods. He estimated the total weight as between 450 and 550 pounds. Immediately after the episode he observed Celeste walking in a slouched position and was of the belief that he continued working for the rest of the day.

Since Celeste was deceased, his detailed written statement, made on November 17. 1955, concerning the events under review, was received in evidence at the hearing. It is as follows:

'I have worked for Progressive Silk Finishing Company since 1942 or 1943. My job there is as Beamer. I earn $1.59 an hour, 40 hours a week.

On Thursday, September 1, 1955 I was doing my regular work. I went over to help Louis Mastrofino lift a roll of goods. It weighed 300--350 pounds, the roll of cloth did. When I lifted, I felt a little pinch in my back on the left side right at the belt line. Nothing hit me and I didn't fall. I told Louis about it. I continued working. The next week I spoke to Andrew Clemente, the foreman, and told him that my back was bothering me. I went to the office and the lady on the telephone told me the company Doctor was Doctor Modero * * *.

I went to see him and continued working for about 3 weeks. Dr. Modero gave me some tablets; * * *. I continued seeing him for about seven weeks. My back kept getting worse and finally I had to stop work. I haven't worked since the end of September, 1955.

About three weeks ago, Dr. Modero said he couldn't do anything else for me, but that he could order a belt.

* * * * * *

I went to the company and Mr. Schneider sent me to Dr. Ruoff, Union City. He examined me * * *. By back still hurt so I finally went to a Dr. Patalino, * * * he wouldn't handle my case, * * *. Dr. Patalino gave me the name of another Doctor who had me admitted me (sic) to the Jersey City Medical Center, * * *. The Company did not send me to either of these Doctors.

The Doctor who is treating me now is giving DEEP treatments. He also is conducting tests. Doctor Paladino (sic) is the one who prescribed a belt. * * *.

Now I have pain in the left side of my back and in both legs.

* * *."

The decedent's wife testified that previous to this incident her husband was in good health, except for an occasional cold, and never had a doctor. On the day he was injured, however, he returned home at about 5:20 P.M. (his hours at Progressive were 8:00 A.M. to 5:00 P.M.) complained that his back bothered him and went directly to bed. Despite a rubdown administered by his wife, the pain made it impossible for him to lie still in bed. Mrs. Celeste said from that day until the day he died her husband suffered from the back pain. While at home he was 'always on the go' and was unable, because of the pain, to sit, stand or lie down for any period of time.

On September 8, 1955, pursuant to directions by Progressive, Celeste went to Dr. Modero for examination and treatment. The hostory received by Dr. Modero included the lifting episode and the sharp pain in the muscles of the lower part of his back. Based on his clinical findings, Dr. Modero diagnosed that the patient had suffered a strain of the muscles of the lower part of his back (the lumbosacral area). X-rays of the pelvis and lumbo-sacral spine, taken on September 27, 1955 at Dr. Modero's request at St. Mary's Hospital, were 'essentially negative,' according to the roentgenologist's report. Dr. Modero administered drugs to relieve the pain and to minimize the muscle spasm. The pain, as time went on, did not subside.

Celeste continued to be employed by Progressive throughout September 1955. His son, Nicholas, Jr., age 27, testified that on the night of the accident or soon thereafter he went to the home of his parents in response to his mother's telephone call. He found his father in 'very great pain.' '(H)e would lie down maybe 15 minutes and likewise he would get up maybe another 15 minutes and walk around. Then he would sit down in a chair. He could never stay in any given position for any too long of a time.' Thereafter, Nicholas went to his parent's home every night after business and almost all day on Saturday and Sunday. He corroborated his mother's testimony as to his father's pain, his inability to remain still and general worsening physical condition during the remainder of his life.

On September 30, 1955, approximately one month after the injury, Celeste left his job at Progressive and never returned.

On October 28, 1955, after 11 treatments to relieve the pain and relax the muscle spasm, Dr. Modero concluded that the pain complained of was increasing in intensity and 'was somewhat disproportionate to the amount of muscle strain that he sustained as a result of the injury.' He advised that a complete medical examination be made by his family doctor, and he did not see him thereafter.

On November 8, 1955 Celeste was first admitted to the Jersey City Medical Center under the direction of Dr. Valergakis, a neurologist. By then, according to his son's testimony, his father had definitely lost weight, his eyes were drawn and surrounded by black shadows. His son had to help him up the hospital steps. Celeste's medical history was taken at the hospital and later read into the record. It denied 'all signs or symptoms of disease until September 1, 1955, when he developed a pain in the left low back after lifting a roller at work. The pain radiated down the lateral and anterior aspect of both thighs.' Since that date 'the pain has been persistent and dull with occasional or periodic spells of complete disappearance of the pain. Shortly after, the pain began to radiate down to both legs, particularly the back of the legs, and especially down the right leg. He has experienced no aggravation of the pain on coughing. He was unable to sleep at night without the analgesics or narcotics. Of equal interest is an unqualified loss of appetite and of about ten pounds over this period of time.' The patient was described as 'comfortable but anxious.' The remainder of the history offered no medical explanation for the pain.

On November 23, 1955 at Dr. Valergakis' request, Dr. Mauriello, a specialist in internal medicine, undertook to care for the patient. He found localized point tenderness in the left of the lower back and in the midline, radiating downwards. There was no pain at that time in any other part of the body. A blood test taken on November 18, 1955 disclosed the 'tremendously important' presence of alkaline phosphatase, an indication of activity in the bones due to an organic process. This finding, plus the unusual progression and persistence of symptoms, generally represented bone destruction. Although he was 'very, very sure' that the patient had 'malignancy metastatic to bone,' he was uncertain of its origin or prime cancer locale. He had himself treated many hundreds of cases of metastatic lesion (a lesion is a wound or a local degeneration). A metastatic condition is an offspring of cancer and consists of the transfer of a disease or diseased matter from one part of the body to another not connected with it. Dr. Mauriello admitted that decedent's 1955 X-rays did not reveal any metastatic lesion in the bones. Nevertheless, he was convinced Celeste was suffering from more than an ordinary back strain. Further blood tests were made on November 22 and December 15, 1955. They revealed an increased presence of alkaline phosphatase indicating the progression of disease.

Dr. Mauriello further testified that the usual origins or locales of primary cancer in the male are in the thyroid, lung, prostate and kidney. He observed that its locale does not make a difference in therapy but will occasionally determine whether the progression of the metastasis will be swift or slow.

During this first hospital...