Cohrs v. Igoe Bros., Inc.

• Decision Date: 15 January 1962
• Docket Number: No. A--703,A--703
• Citation: 177 A.2d 284,71 N.J.Super. 435
• Parties: Mary G. COHRS, Petitioner-Respondent, v. IGOE BROTHERS, INC., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 435

71 N.J.Super. 435

177 A.2d 284

Mary G. COHRS, Petitioner-Respondent, v. IGOE BROTHERS, INC., Respondent-Appellant.

No. A--703.

Superior Court of New Jersey Appellate Division.

Argued Nov. 20, 1961.

Decided Jan. 15, 1962.

William T. McElroy, Newark, for appellant (Shaw, Pindar, McElroy, Connell & Foley, Newark, attorneys).

Samuel A. Larner Newark, for respondent (Budd, Larner & Kent, Newark, attorneys).

Before Judges GAULKIN, HERBERT and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The Division of Workmen's Compensation determined that petitioner was permanently disabled to the extent of 20% Of total as the result of a fall at her place of employment and awarded her compensation therefor, besides ordering the payment of hospital and medical bills, as well as medical and legal fees.

On respondent's appeal, the County Court affirmed the award and also allowed petitioner interest at 6% From the date of the Division's judgment on each week's award to the date of entry of judgment in the County Court.

On this further appeal by respondent from the judgment of the County Court, respondent argues that (1) the petitioner failed to sustain her burden of proof; and (2) the County Court erred in allowing interest dating back to the time of the award in the Division of Workmen's Compensation.

The employment relationship, the happening of the accident, due notice thereof to the employer, the nature of petitioner's permanent disability, and the timeliness of her claim petition are not in issue. Nor do the parties argue the correctness of the percentage of disability found by the Division, though petitioner's neurologists gave appraisals of 60% And 25%, as against a figure of 15% Of total testified to by respondent's expert. The primary basic dispute is whether there exists a causal connection between petitioner's accident and her disabling condition of multiple sclerosis. Her medical experts swore that there is such a causal relationship and respondent's expert testified to the contrary.

Guided by Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958), and Ricciardi v. Marcalus Mfg. Co., 26 N.J. 445, 140 A.2d 215 (1958), we have made our own independent study of the evidence, giving 'due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses' and 'full and respectful consideration of the views expressed, on both fact and law' by the Division and by the County Court. We note that both tribunals concurred in finding causal relationship and that the deputy director made special mention of the fact that he was impressed by the honesty of petitioner's testimony.

I.

Respondent concedes that petitioner sustained a compensable accident on July 30, 1957, when she slipped and fell on the floor of the office lobby, where she was employed as a switchboard operator and receptionist. She was then 42 years old and had been in the employ of respondent and its predecessor for about nine years prior to that date.

Petitioner's accident was a simple one. As she described it:

'I closed up the board at five o'clock and started to walk towards the front door to go--well--in fact, I was going to the ladies' room first, and I stood for a few minutes talking to one of the girls that was sitting there, and then continued on inside, and then came out to go out the front door.

When I came out, I slipped, I fell down. I turned on my arm and hit the side of my head.'

She attributed her fall to the slippery, waxed floor. She explained that she struck the left side of her head, got up and was holding her hand, which started to swell up and hurt her, when the office manager, who was coming down the stairs at the time, came over to her. She stood there a few minutes and then continued on to get a bus over at the corner.

She testified further:

'* * * when I got on the bus I felt kind of funny. * * * I felt dizzy and started to get pain in the side of my face. * * * Left side. * * * and by the time I got home it was all numb to the center of my lip and it was paining me, and the back of my head, and I called Dr. Forte who is my family physician.'

Dr. Forte saw her at her home on the day of the accident, was informed that she fell at her place of work, and found objectively, in examining her, 'swelling, ecchymosis left side of face and lip, left arm and leg with tenderness.' He treated her symptomatically, 'put her on analgesics, diathermy to the arm and leg and then * * * gave her Vitamin B12 injections for her numbness she was complaining of in the face.' Dr. Forte treated her further on July 30 and July 31, 1957 at her home and thereafter on August 5, 9, 12, 15, 22 and 29, 1957 at his office. While he had not discharged her as cured, she did not return to his office until January 2, 1958, at which time she still had discomfort, pain and numbness on the left side of her face. On the last-mentioned date, he examined her superficially, made a diagnosis of 'cerebral concussion, contusion of the left side of the face, head, face and left arm and leg.' He found no neurological signs at that time. He prescribed the same medicine, told her to come back, but that was her last visit to Dr. Forte.

On cross-examination, Dr. Forte testified that, at her January 1958 visit to his office, petitioner complained of 'swaying' and that he told her it could be the result of her injury, her concussion. He did not regard the swaying as a neurological sign and 'didn't pay any attention to that.' Dr. Forte had treated Mrs. Cohrs for four or five years prior to her accident, from eight to twelve times a year for 'bronchitis, asthma, pleurisy, influenza, colds and menopausal syndrome,' but she never complained before the accident of any dizziness, loss of balance, loss of sense of balance, or anything in that category.

Petitioner testified that the swaying and loss of balance first manifested themselves about two months after the accident and that she never had these symptoms prior thereto. She seems to have worked regularly before her mishap and engaged in bowling 'maybe once a week with the girls.' On cross-examination, she denied making any statements to her doctors that her dizziness and instability in walking had appeared prior to her 1957 accident. She particularly denied having told Dr. Furst or any other doctor who examined her in July or August 1958, or anyone else at East Orange General Hospital when she was there in 1958, that she had noticed dizziness and difficulty in her walking for 'two years' prior thereto.

Because she wasn't getting better under Dr. Forte's care and 'kept going to the side' when walking, she consulted another physician, Dr. Becker, on June 2, 1958. He verified that she gave him a history of her accident and that on her third visit she told him that 'she had this falling over to the left side or pulling over to the left side ever since September, 1957.' He gave her a Romberg test and finding positive neurological signs recommended her to Dr. Furst a neurologist. Dr. Furst saw her for the first time on July 10, 1958 and found that she was ataxic. He advised a more intensive study in an intramural hospital setting.

Petitioner entered East Orange General Hospital on August 3, 1958 and remained until August 22, 1958, during which time there were tests and treatment. There she was observed not only by Dr. Becker and Dr. Furst, but also by Dr. Medinets, a neurosurgeon, and a Dr. Roh. Dr. Becker diagnosed her condition as a cerebral encephalopathy, causing the disturbance of balance. The neurologists, including Dr. Flicker, respondent's expert, who subsequently examined her and the hospital records, described the condition as a demyelinizing process or multiple sclerosis, permanent in nature but with periods of exacerbation and remission, and disposed toward becoming progressively worse.

On the assumptions of an absence of the symptoms prior to the accident and their manifestation approximately two months after her fall, petitioner's treating physician and treating neurologists stated as their opinion that there was a causal relationship between the accident and the condition of multiple sclerosis. Dr. Furst concluded, on the basis of the foregoing assumptions that 'the injury had something to do with the precipitation of the neurological picture.' He testified that multiple sclerosis can occur from a virus infection or from an allergic response or a deficiency disease 'or it may occur from trauma.' Pre-existing viral infections, germ allergies and deficiency diseases, according to Dr. Furst, might have 'sensitized the individual's nervous system to the other factor, namely, trauma.'

On cross-examination, Dr. Furst admitted that if the onset of the symptoms antedated the accident his opinion of causal relationship would change. In view of that material concession, and the fact that Dr. Medinets first found no causal relationship on the basis of the hospital record which indicated the existence of the symptoms prior to her fall, respondent then adduced the following items of evidence to prove that petitioner's symptoms of multiple sclerosis had their onset prior to July 30, 1957, the date of her accident. First, Dr. Furst testified that he took a personal history from petitioner on his initial examination of her on July 10, 1958 and he then recorded that she told him that she had the symptoms 'for the past two years.' Second, the history recorded by Dr. Roh in the hospital record on consultation on August 5, 1958 notes:

'Insidious and gradual onset beginning 2 years ago--becoming incresingly severe the past 6--8 weeks * * *.'

Third, on July 11, 1958 Dr. Furst wrote to Dr. Becker stating that he had examined petitioner the previous day and that:

'* * * she gave me a 2-year history of dizziness, unsteadiness, not feeling right, inability to see well, falling against doors, and in general has been experiencing a physical decline * *...