Furferi v. Pa. R. Co., 58.

• Decision Date: 22 January 1937
• Docket Number: No. 58.,58.
• Citation: 189 A. 126
• Parties: FURFERI v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

189 A. 126

FURFERI

v. PENNSYLVANIA R. CO.

No. 58.

Court of Errors and Appeals of New Jersey.

Jan. 22, 1937.

Appeal from Supreme Court.

Proceeding under the Workmen's Compensation Act by Dominick Furferi, claimant, for the death of an employee, opposed by the Pennsylvania Railroad Company, employer, wherein Carmela Furferi was substituted in the place and stead of Dominick Furferi. From a judgment of the Supreme Court (116 N.J.Law, 70, 181 A. 898), reversing a judgment of the Court of Common Pleas (180 A. 405, 13 N.J.Misc. 574), which affirmed the award of compensation by the Workmen's Compensation Bureau, Carmela Furferi appeals.

Judgment of the Supreme Court reversed, and judgment of the Court of Common Pleas affirmed.

Felcone & Felcone, of Trenton (Michael Felcone, of Trenton, of counsel), for appellant.

W. Holt Apgar, of Trenton, for respondent.

HEHER, Justice.

This is a proceeding under the Workmen's Compensation Act. P.L.1911, pp. 134, 763, as amended (Comp.St.Supps. § **236—1 et seq.). The deputy commissioner found that the employee had suffered, by accident arising out of and in the course of his employment with the respondent, a fatal accidental "aggravation" of a conceded pre-existing inguinal hernia; and the Mercer common pleas affirmed the consequent judgment.

The evidence adduced by petitioner tended to prove that on August 15, 1933, the deceased, while engaged with fellow workmen in lifting railroad ties from the floor of a car over its side, three and a half feet high, to the right of way, sustained a strain which resulted in the strangulation of the contents of an existing hernial sac. The examining physicians found "a mass down on the right side, a hernia." The surgeon who performed an operation three days later found "a right inguinal strangulated hernia containing omentum and intestine." The intestine was "gangrenous and perforated," and there were "a lot of adhesions between the hernial sac and the omentum and the hernial sac and the intestines." It was the undisputed medical opinion that the deceased had had a right inguinal hernia "for years"; there were unmistakable symptoms that it was of long standing. And the operating surgeon testified, and the conclusion was not seriously disputed, that the "hernia had been aggravated by the lifting of the ties," and that the "incarceration" and strangulation were the direct consequences.

The Supreme Court ruled as a matter of law that, for failure of proof of the elements of accidental hernia prescribed in paragraph 11 (x) of the Compensation Act, as amended by chapter 279 of the Laws of 1931 (P.L. p. 704 [N.J.St.Annual 1931, § **236—11 subd. (x)]) the fatality was noncompensable. It was observed that a contrary construction would render the statute "largely meaningless, because a hernia, noncompensable at its occurrence, becomes compensable on its reoccurrence."

But this reasoning does not take into account the essential difference between the occurrence of a hernia, no matter how it originated, and the traumatic aggravation of that bodily infirmity. It rejects, as inapplicable by reason of the last cited statute, the well-established principle that disability and death, directly attributable to the aggravation of pre-existing disease by accident arising out of and in the course of the workmen's employment, are compensable. In Winter v. Atkinson-Frizelle Co., 88 N.J.Law, 401, 96 A. 360, this court sustained an award to the dependents of a workman whose death resulted from the effects of an unusual strain upon a diseased heart. The like ruling was made in Bernstein Furniture Co. v. Kelly, 114 N.J. Law, 500, 177 A. 554. And in Graves v. Burns, Lane & Richardson, 160 A. 399, 10 N.J.Misc. 667, affirmed 110 N.J.Law, 607, 166 A. 166, this court held that tuberculosis ensuing from the activity of dormant bacteria induced by extraordinary strain is compensable. Such was also the holding of this court in Lundy v. George Brown & Co., 93 N.J.Law, 469, 108 A. 252. This principle was applied where a latent venereal disease and its resultants were rendered active by accident; it was held that there was an accidental injury in the legal sense. New York Live Poultry Trucking Co. v. Schwartz, 135 A. 775, 5 NJ.Misc. 178, affirmed 104 NJ.Law, 180, 139 A. 923. And in New York Switch & Crossing Co. v. Mullenbach, 92 NJ. Law, 254, 103 A. 803, where there was an aggravation of two hernia: as the result of strain suffered in lifting a steel girder, and the workman died of post-operative pneumonia, this court held that his death ensued from an accident arising out of and in the course of the employment. See, also, Geizel v. Regina Co., 96 NJ.Law, 31, 114 A. 328, affirmed 97 NJ.Law, 331, 116 A. 924.

We proceed to a consideration of the statute. We perceive in its general scheme and the language employed to express the legislative purpose recognition of the distinction between the hernia itself and the consequences of intervening trauma, direct and indirect, upon the affected part, and to deal only with the former. Proceeding upon the assumption, grounded in medico-surgical experience, that inguinal hernia is ordinarily a disease which "develops gradually," and is "very rarely the result of an accident," it classifies as compensable a "real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall"; and it then goes on to provide that "all other cases will be considered as either congenital or [of] slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours" after the occurrence of the hernia; * * * fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia."

Thus is evinced a purpose to classify as compensable a hernia in its origin traumatic in the broad general sense, and to exclude the hernia which is the culmination of a congenital or after-acquired physical weakness, classable as a disease, by setting up a standard of proof of hernia of the former class. It is fundamental in the statute that an inguinal hernia resulting from an accident is compensable, even though the employee has the weakness of body structure predisposing to that condition. But, in the absence of the elements of proof laid down in the statute, the hernia is considered the emanation of disease solely; it is in no sense classed as a noncompensable traumatic or accidental hernia. In the case of a hernia that does not meet the statutory standard of proof, the classification is nontraumatic—a disease unassociated with accident—and it is therefore noncompensable. The limitation of this provision to hernia; of the inguinal type, effected by the amendment of 1931, is also significant of this design.

And so, the accidental aggravation of an existing hernia is compensable, if the proof brings it within that category. There is an obvious difference between the symptoms of the occurrence of a hernia and the traumatic strangulation of the intestinal or other contents of the hernial sac. When strangulation ensues from the application of intraabdominal force flowing from unusual effort and overexertion, there is an accident in the statutory sense; and there is a definite relation between the accidental injury and the consequences of the strangulation. In the Annals of Surgery, 1929, Dr. Coley defines "traumatic hernia" as one "resulting from the direct application of force to that portion of the abdominal wall at which the hernia appears, or a hernia resulting from the indirect application of force causing greatly increased intraabdominal pressure; whether the hernia follows the natural openings in the abdomen or not, or creates a new passageway, is immaterial."

Manifestly, the deceased could not have met the requirements of this statute, for the hernia did not follow but long preceded the accident made the basis of the claim for compensation. His dependents are not seeking compensation for the hernia,...