Goldstein v. Continental Baking Co., A--693

• Decision Date: 27 October 1953
• Docket Number: No. A--693,A--693
• Parties: GOLDSTEIN v. CONTINENTAL BAKING CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 55

28 N.J.Super. 55

100 A.2d 337

GOLDSTEIN v. CONTINENTAL BAKING CO.

No. A--693.

Superior Court of New Jersey Appellate Division.

Argued Oct. 13, 1953.

Decided Oct. 27, 1953.

John W. Taylor, Newark, for appellant.

Isadore Rabinowitz, Paterson, for respondent (Nathan Rabinowitz, Paterson, attorney).

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Continental Baking Co. appeals from a judgment of the Passaic County Court affirming a compensation award in favor of petitioner Goldstein, its employee, by the Workmen's Compensation Division. The single question raised on this appeal is whether the company had knowledge or notice of petitioner's claimed accidental injury within 90 days of August 31, 1951, the alleged date of its occurrence. It denies it had either knowledge or notice within the time and in the manner prescribed by R.S. 34:15--17 and 18, N.J.S.A. Both tribunals below found to the contrary.

Petitioner worked for Continental as a baker's helper. His duties consisted mainly of lifting and placing bread pans into an oven. He testified that on August 31, 1951 he felt a bad pain in his back while reaching down to get a pan. He did not tell anyone of the incident, but finished out the day. The next day he phoned that he would not be in to work. He then returned to work and continued at his job because he thought he had only a slight cold in his back. Petitioner further testified that he told his supervisor, Mr. Pfizenmaier, about his back condition only 'after I had gone to the doctor at several months later.' By way of explanation he said, 'See, the reason I didn't go right away was because I figured I might have a slight cold in there, so I didn't take it serious enough.'

Petitioner first went to a doctor on October 10, 1951, and was given the following note:

'10/10/51

To whom it may concern:

Philip Goldstein is under my care for back pain. He must not do any twisting, turning or bending in order for this condition to improve.

D. Doktor, M.D.'

He gave this note to Pfizenmaier but could not remember when. There is no proof as to just when the note was delivered, but it was in the company's possession at the time of the trial.

Petitioner continued to work until December 8, the beginning of his two-week vacation period. He testified that while on vacation he phoned Pfizenmaier and said he would take a few weeks' rest, that his back was giving him trouble and he would not be able to return to work at the end of his vacation. He apparently also went to the plant during the vacation period and told Pfizenmaier that his back was bothering him too much and he would have to take 'a little resting period to see if it would go away.'

It is uncontroverted that petitioner worked continuously from the time of the alleged accident up to the beginning of his vacation on December 8, with the exception of September 1. Counsel stipulated that petitioner's employment with Continental ended in December 1951 because of the slack season; petitioner being low man on the seniority list was the first to be let go.

The deputy director, after referring to the doctor's note of October 10, concluded that the note had been given to the employer on that date, and in his summary of determination, rule for judgment and award found that Continental had 'due and timely' notice of the accident. In passing on the issue of knowledge or notice, the County Court found that 'the employer, under the circumstances of the case, had actual knowledge of the occurrence of the injury within the requirements of the statute'--that is, within 90 days after its occurrence.

Our former Court of Errors and Appeals held in Hercules Powder Co. v. Nieratko, 114 N.J.L. 254, 176 A. 198 (E. & A.1934), affirming 113 N.J.L. 195, 173 A. 606 (Sup.Ct.1934), that the requirement of knowledge or notice is a prerequisite to recovery; compliance with the provisions of R.S. 34:15--17 and 18, N.J.S.A., is a condition precedent to the enforcement of a claim, and not merely directory. The statute not only prescribes the manner of service of the notice, but its form. The court said:

'The obvious purpose of the notification is that the employer may in the absence of knowledge receive written notice that a claim is presented for an injury received by an employee in the course of employment while engaged in his work in a place and at a time designated in the notice. Being in writing, it becomes a permanent record as between the parties, definite in character; a record that can be preserved for future reference, thus avoiding controversy or dispute between the parties as to the information thus conveyed, and leaving nothing open as a subject of future misunderstanding. It is thus for the protection of both employer and employed.' 114 N.J.L. at page 255, 176 A. 198.

In General Cable Corp. v. Levins, 124 N.J.L. 223, 11 A.2d 61 (E. & A.1940), affirming 122 N.J.L. 383, 5 A.2d 731 (Sup.Ct.1939), the same court, in finding that the employer there had actual knowledge of the claimed injury said:

'The meaning and intention of the statute is reasonably clear. There is nothing fanciful or abstruse about it. It is simply that the law requires, in fairness to the employer, that there be brought home to him the occurrence of an injury suffered by an employe. In the facts and circumstances here exhibited that requirement was performed. One thing more--knowledge, under the statute, of the occurrence of injury is the substitute for the statutory notice of such injury; and that knowledge need not be broader or more comprehensive in detail than that which is required for valid notice. Now a notice (the form is found in the statute--R.S. 34:15--18) need only inform the employer that a personal injury was received by an employe who was in the employ (stating the place) while engaged as (stating the kind of work) at a given time; and a variation from this is immaterial so long as the information imparted by the notice acquaints the employer with the fact that a named person in the employ suffered an injury in the course of his employment.'

There is nothing in the record to show that the employer at any time within the statutory period of 90 days received notice or, in lieu of notice, possessed knowledge of the occurrence or existence of the claimed injury. There is no suggestion that anyone observed petitioner experience a back pain on August 31 or that the incident was then communicated to the company. In fact, petitioner kept right on working; he did not report his back trouble nor tell his supervisor about it that day. The testimony that he called the next day and said he would not be in to work tells us nothing as to whom he spoke or what reason he assigned, if any, for remaining away. As noted, he did speak to his supervisor 'after I had gone to the doctor at several months later'--this would be some time after October 10, because 'several months' imports more than two months. Webster's New International Dictionary (2d ed.); Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203, 30 L.R.A.,N.S., 60 (Sup.Ct.1910); Day v. Becker, 145 S.W. 1197 (Tex.Civ.App.1912).

If we assume that this conversation took place within the 90-day statutory period, all that it establishes is that he spoke to Pfizenmaier about either having a pain or a...