Gagliano v. Botany Worsted Mills
| Decision Date | 14 March 1951 |
| Docket Number | No. A--38,A--38 |
| Citation | 13 N.J.Super. 1,80 A.2d 125 |
| Parties | GAGLIANO v. BOTANY WORSTED MILLS. |
| Court | New Jersey Superior Court — Appellate Division |
Benjamin Greene, Garfield, argued the cause for petitioner-appellant (Alfred D. Schiaffo, Lodi, on the brief).
G. Dixon Speakman, Newark, argued the cause for respondent-respondent (Toner, Speakman & Crowley, Newark, attorneys).
Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
McGEEHAN, S.J.A.D.
The petitioner appeals from the judgment of the Passaic County Court which affirmed a judgment entered in the Division of Workmen's Compensation dismissing the petitioner's claim for compensation.
The petitioner was employed by the respondent as a trucker in its warehouse. While at work in the warehouse pushing a hand truck, on which there was a bale of wool weighing approximately 350 pounds, the petitioner collapsed, became unconscious and was taken to the employer's clinic. He suffered a coronary thrombosis resulting in a myocardial infarction. At the hearing before the deputy director, he attempted to prove that while pushing the hand truck it became stuck in a hole in the floor and in trying to free it by force he slipped to the floor and the hand truck toppled on his chest; that this activity constituted an unusual or unexpected strain or exertion arising out of his employment; and that his heart attack was caused thereby. There was conflict in the evidnce as to what actually happened about the time of the petitioner's collapse and question as to the credibility of certain witnesses.
In the findings filed by the deputy director, there is no finding of fact as to what actually occurred at or about the time of the alleged accident. The deputy director found (1) that the petitioner had not sustained the burden of proof 'in establishing that he suffered an accident arising out of and in the course of his employment,' and (2) that 'Even if any one of the number of versions of a compensable accident to the petitioner had been established by him, I am satisfied that his present cardiac condition is in no wise related, either by way of cause or aggravation, to such alleged accident.' Both of these findings are merely ultimate conclusions of fact. Cf. Cormican v. McMahon, 102 Conn. 234, 128 A. 709, 711 (Sup.Ct. of Errors, Conn.1925). The County Court Judge filed a determination, stating: 'I am of the opinion that the judgment of the Workmen's Compensation Bureau should be affirmed and the appeal dismissed for the reasons expressed' by the deputy director.
On this appeal the petitioner argues (1) that the court erred in capriciously rejecting the testimony of a competent witness, (2) that the petitioner sustained the burden of proving that he suffered a compensable accident arising out of and in the course of his employment, and (3) that the County Court erred in its failure to make an independent finding of fact on an appeal from a decision of the Workmen's Compensation Bureau.
On a claim for compensation for a heart injury, there is a presumption that the heart injury is the result of natural physiological causes and the petitioner has the burden of proving, by a preponderance of the probabilities, that his heart attack was caused by an unusual or unexpected strain or exertion arising out of his employment and beyond the mere employment itself. Seiken v. Todd Dry Dock, Inc., 2 N.J. 469, 67 A.2d 131 (1949); Grassgreen v. Ridgeley Sportswear Mfg. Co., 2 N.J.Super. 62, 64 A.2d 616 (App.Div.1949), cert.den. 1 N.J. 603 (1949); Temple v. Storch Trucking Co., 3 N.J. 42, 68 A.2d 828 (1949).
The deputy director made no finding of fact as to the particular activity in which the petitioner was engaged at the time in question and no finding as to whether such activity was in the usual routine course of labor to which the petitioner was accustomed, or whether it included an unusual or unexpected strain or exertion arising out of the employment. Without such findings by the deputy director in a heart case, neither the County Court nor this court can perform its proper functions.
On appeal to the County Court in a workmen's compensation case, the hearing before the County Court must be based 'exclusively on the transcript of the record and...
To continue reading
Request your trial
-
Becker v. Union City, A--718
...610 (App.Div.1950); Martin v. Western Electric Co., Inc., 9 N.J.Super. 89, 74 A.2d 905 (App.Div.1950); Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, 80 A.2d 125 (App.Div.1951). An acquaintance with the above cited decisions will reveal that the following principles are firmly sustained......
-
Congleton v. Pura-Tex Stone Corp.
...petition.' Folsom v. Magna Manufacturing Co., 14 N.J.Super. 363, 369, 82 A.2d 434, 437 (App.Div.1951); Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, 80 A.2d 125 (App.Div.1951); Patton v. American Oil Co., 13 N.J.Misc. 825, 181 A. 651 (Sup.Ct.1935), affirmed 116 N.J.L. 382, 185 A. 35 (E......
-
Jensen v. Wilhelms Const. Co.
...it, that we make independent findings of fact. Rule 3:81--13; cf. Rules 1:2--20 and 4:2--6.' Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, at page 5, 80 A.2d 125 at page 127 (App.Div.1951). Cf. Temple v. Storch Trucking Co., 3 N.J. 42, 68 A.2d 828 (1949); McGowan v. Peter Doelger Brewi......
-
Russo v. Governor of State of New Jersey
...of the trier of the facts to judge and pass upon the credibility of the witnesses, R.R. 1:5--3, 1:5--4; Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, 5, 80 A.2d 125 (A.D.1951). Even in the newest form of tribunal, the administrative agency, the earlier heresies and misunderstandings as......