Dorian v. Fed. Shipbldg. & Dry Dock Co.

• Decision Date: 07 April 1947
• Parties: DORIAN v. FEDERAL SHIPBUILDING & DRY DOCK CO.
• Court: New Jersey Court of Common Pleas

52 A.2d 551

DORIAN

v.FEDERAL SHIPBUILDING & DRY DOCK CO.

Court of Common Pleas of New Jersey, Hudson County.

April 7, 1947.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by George Dorian, claimant, opposed by the Federal Shipbuilding and Dry Dock Company, employer, to recover compensation for total and permanent disability. From an award of the deputy commissioner in favor of the claimant, the employer appeals.

Claim petition dismissed.

Isaac W. Seiler, of Bayonne (Aaron Gordon, of Jersey City, of counsel), for petitioner-appellee.

Stryker, Tams & Horner, of Newark (Andrew Lawrie, of Newark, of counsel), for respondent-appellant.

DREWEN, Judge.

The petitioner was an employee of respondent company at its Kearny shipyard. He is now totally and permanently disabled by a hemiplegia, or ‘cerebral lesion’ as the medical experts state it. The accident alleged to have resulted in this condition occurred, it is claimed, on January 17, 1944. The original claim petition was not filed until March 26, 1945, and it describes the accident in these words: ‘I was knocked down by the crowd of the day crew which was going off duty as I was going on. My right hand was badly cut and bruised and I was severely shocked and was confined to St. Francis Hospital until April 10, 1944.’ In the claim petition permanent injury is alleged to have resulted as follows: ‘My nervous system has been completely shattered; my right hand has been permanently injured. I have lost my power of speech.’

The character and extent of the disability are not in dispute. The single question to be determined is that of causal relation between petitioner's present state and the accident alleged. The only testimony of the accidental happening is that of petitioner himself. There is no direct evidence that anyone else saw it. The narration of the accident and the sequel as he gives it is as follows: He was knocked down, he says, sustaining a bruise in the bone of the right shin and on the arm, also a cut on the back of the hand; and his ‘head was injured.’ When he was knocked down he stayed there a minute or two, then ‘some other fellows' helped him get up. While on the ground he ‘didn't feel very good * * * the eye and the head were injured * * *.’ While down for a minute or two he was dazed; when helped up he ‘stood there for a little while * * * was nervous * * * then went to the shop.’ From there he went to his foreman to get a ticket to the First Aid. At the First Aid Station he saw a nurse and says he ‘told her that I had a hand injury and the head injury.’ At the First Aid Station, he says, ‘they just fixed up my hand * * * they gave me a card to get me flash glasses.’ On leaving the First Aid Station he went back to work and remained at work throughout his regular time, plus four hours of overtime. That night he felt ‘very funny.’ The head and the hand and the leg hurt him. When he touched his eye, the right one, it hurt. It was swollen, and there were two big bruises on the right shin. And the right hand was cut on the side of it. His head was ‘bruised, swelled.’ The swelling was on the right side of the forehead, just above the right eye. There was nothing else that gave him any trouble that night. That night his head hurt him all over, but the bruise was just across the eyebrow. After completing his overtime work on the morning of January 18 he went directly by bus, tube and subway to his home in Brooklyn, reaching there about 5:30 A.M. He went promptly to bed and upon retiring felt bad all over, his head, arm and leg. He arose at 12 noon on the 18th. He left his home in time to report for work on his regular shift from 4 P.M. to 12 Midnight. His right arm was bothering him. It hurt him. When he boarded the bus in Jersey City for the last stage of his trip to the shipyard, he ‘got the feeling in my arm;’ he could not move it one way or the other. This occurred between the time he boarded the bus in Jersey City and the time he left it at the shipyard in Kearny. Upon arriving at his work place in the yard someone took him to the First Aid Station, whence he was removed, after a time, to St. Francis Hospital. He remained in the hospital for about three months, until April 10th. Thus does petitioner describe the accident, the injury and its sequel. As to the accident, there is no testimony but his own, unless we add that of his wife regarding her having seen a lump over petitioner's right eye upon his return home, and to which further reference shall presently be made.

The issue here centers in the question whether the injury inflicted by the fall included an injury or trauma to the head. Petitioner's wife testifies that upon her husband's return from work in the early morning of January 18th his hand was bandaged and that she noticed also a swelling over the right eye. In another place she describes it as ‘just a bump.’ She adds that there was no cut, no discoloration, no evidence of treatment. She gives the proportions of the bump or swelling as about 1/2? in length and 1/4? high. When she saw her husband at the hospital on the morning of January 19th she did not notice the bump. As already indicated, this testimony of the wife, together with that of petitioner, is all that the record tells of the accident itself. It is the uncontradicted medical proof in the case that an evidence of trauma like that just described would develop within one hour after a blow sufficient to cause it and would remain six or seven days.

It so happens that the medical controversy on the vital question of causal relation between the disability and the accident is resolved into the simple issue of fact as to whether the petitioner's fall did actually include a head trauma, or anything more than the abrasion on the back of the hand. This simplification comes about in the manner following. The medical experts called by petitioner testified to causal relationship upon a strict hypothesis that included the assumption of traumatic injury to the head, while the medical experts called by respondent testified to the absence of such relationship upon a hypothesis that excluded such injury. The former experts, however, upon being finally required to state their opinion upon a contrary hypothesis, that is one excluding an assumption of head trauma, declared that upon that basis they could find no causal relation between the claimed accident and the disability; and the experts called by respondent expressed the opposite reversal of opinion upon a corresponding change in the hypothesis submitted to them. Thus it is that all controversy centers in the presence or absence of head trauma, one result of this being that without head trauma there can be no causal relation, in the agreed opinion of the doctors. It must be apparent, however, that even without this ultimate explicit medical assent, the inflicting of head trauma must still be regarded as the major question, for the reason that the expert opinion of causal relation rested throughout upon an assumption of that factor, just as the contrary opinion rested upon its omission.

It is respondent's contention in this respect that there was no head trauma, and that all averments of that kind now made are entirely the result of afterthought. Respondent contends that, notwithstanding the testimony of petitioner and such corroboration as his wife may be said to afford, the instances of petitioner's failure to report any injury to his head on occasions when he was required to describe the accident and to state such injury had there been one, plus the instances of the failure of disinterested persons to observe on petitioner's head or face any external evidence of trauma, even under such circumstances that they would quite certainly have done so had the evidence been present, are so numerous and consistent as to establish preponderating proof against the claim.

From the determination and finding of fact below we learn that the Deputy Commissioner, having found this ‘to be a very difficult case to decide, * * * concluded to give the benefit of the doubt in favor of the petitioner and make an award.’ What the doubt was or upon what appraisals of proof it was resolved does not appear, except only insofar as it is said that the Bureau had before it ‘the positive testimony of petitioner, corroborated by his wife, of the trauma, while the proof of the respondent was negative, namely, that no evidence of injury to the head was found and that no history was noted.’ Defensive proof cannot be rightly dismissed because it is negative. The normal, ordinary thesis of defense in cases of every kind is negative, and while proof may be negative in form its cogency and consequence may well be clearly positive. Whether petitioner's burden is expressed as the greater weight of the credible evidence or as a preponderance of probabilities, the result is the same in that it remains for him to establish the prevailing proof. On which side is the preponderating proof here to be found? The problem is that of weighing evidence by a determination of the credible and the probable. The task is to search out the dynamics of the proof and rest the decision where they carry it. If the process appears too meticulous and overlong, it is so out of deference to grievous matter.

The principle by which in the main the test must be made is set forth in Wigmore, 3rd Edition, section 1042, as follows:

‘A failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of evidence. There may be explanations indicating that the person had in truth no belief of that tenor, but the conduct is prima facie an inconsistency. There are several common classes of cases:

‘(1) Omissions in legal proceedings to assert what would naturally have been asserted under the circumstances;

‘(2) Omissions to assert anything or...