Kling v. Cent. Lumber & Millwork Co.

• Citation: 57 A.2d 670
• Parties: KLING v. CENTRAL LUMBER & MILLWORK CO.
• Decision Date: 08 March 1948
• Court: New Jersey Court of Common Pleas

57 A.2d 670

KLING

v.CENTRAL LUMBER & MILLWORK CO.

Court of Common Pleas of New Jersey, Passaic County.

March 8, 1948.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act on the claim of Anna Elsie Kling for compensation for herself and her infant son, George Kling, as total dependents of Joseph F. Kling, deceased workman, opposed by Central Lumber & Millwork Company, employer. From an award of compensation, employer appeals.

Affirmed.

Nathan Rabinowitz, of Paterson (Ervan F. Kushner, of Paterson, of counsel), for petitioner-appellee.

Harkavy & Leib, of Newark (Abraham I. Harkavy, of Newark, of counsel), for respondent-appellant.

MacLEOD, Judge.

This is an appeal from a Determination of Facts and Rule for Judgment entered in the Workmen's Compensation Bureau which Judgment awarded compensation to Anna Elsie Kling and her infant son, George Kling, as total dependents of Joseph F. Kling, deceased. The respondent-appellant has appealed to this court,-its contention being that there was no causal connection between the accident admittedly sustained by the decedent and his subsequent death.

The material facts in the case are not in dispute. It appears that on July 24, 1943 the decedent fell from a platform approximately 10 to 15 feet high, located at respondent's premises. He sustained various injuries, among them being a laceration of the left side of his head immediately over the left eyebrow, which laceration required seven sutures, and a cerebral concussion. The decedent was removed to a hospital in an unconscious state, where he remained overnight and thereafter was treated by his family physician, Dr. Reuben J. Budd, until November 9, 1943. Treatment was then resumed on June 2, 1944, and continued until February 27, 1945. The decedent died on November 2, 1946.

There is considerable evidence that from the day of the accident until the day of the decedent's death, he manifested symptoms such as staggering, headache, dizziness, vomiting, nauseousness, and unsteady gait, and that prior to his accident he was free from these symptoms. The sole issue, since the accident has been admitted as arising out of and in the course of decedent's employment with respondent, is whether or not there was a causal connection between the injury to decedent's head on July 24, 1943, and his death on November 2, 1946. I had the advantage of oral argument as well as written briefs. I might say that counsel for both parties in this case argued that matter thoroughly and well. I have come to the conclusion that the findings of fact, determination, and rule for judgment entered in the Workmen's Compensation Bureau should be affirmed.

The burden of proof, in cases of this nature, rests upon a petitioner to establish his right to an award of compensation from the respondent. As Mr. Justice Trenchard so succinctly said in Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458, 460: ‘The burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employe was caused by ‘an accident arising out of and in the course of his employment’ rests upon the claimant.'

I feel that the petitioner in this case has proven by the greater weight of the evidence that the death of Joseph Kling was causally related to his compensable accident. It is not necessary for a petitioner to prove the causal connection between an injury and an accident with mathematical certainty. I think it sufficient that where an employee suffers severe and permanent injuries in an accident arising out of and in the course of his employment and immediately thereafter suffers a decline in health, it is extremely probable that the decline in health and in this case the death of Joseph Kling was caused by the accident he sustained. The test in compensation is probability and not certainty. Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 173 A. 606, affirmed 114 N.J.L. 254, 176 A. 198. It is true that the medical experts in this case were in disagreement concerning this problem of causal connection, but as was said in Lundy v. George Brown & Co., 93 N.J.L. 107, 106 A. 362, 363, affirmed 93 N.J.L. 469, 108 A. 252: ‘It is true that the medical testimony in the case is in sharp conflict on the question whether the decedent died as a result of his injuries, or from an entirely independent cause. It is not at all surprising to find opinions of medical experts, on the opposite sides of a case, in disagreement on the matter. * * * If the injuries were the producing cause, the proof of that fact is sufficient.’

Dr. Harrison P. Martland, who enjoys a widespread reputation as a pathologist, and who is Chief Medical Examiner for Essex County, performed an autopsy on the day of decedent's death. Dr. Martland described his findings as a large tumor, two inches by one inch in size. He denominated this growth as a neuro-fibroid growth. He characterized this type of tumor as slow-developing and slow-growing, and said that there would be a probable relationship between the decedent's trauma and his death by brain tumor if ‘it was an honest and severe trauma sustained by decedent and if the man was unconscious after the fall and that if the man was stuporous, that would be an indication of a severe head injury.’ Dr. Martland said in answer to a question propounded by petitioner's attorney as to the causal relationship between decedent's fall and his death as follows: ‘* * * I don't think there is any doubt about it. Therefore all I can say is that it is a probable aggravation in this case.’

Dr. Guy Kim, who is pathologist for the Paterson General Hospital, testifying as a witness for the petitioner was of the opinion that there was a definite causal connection between the decedent's accident and his death. He indicated that if the decedent suffered only a cerebral concussion as a result of his fall, his symptoms would be transitory and would subside in time, but that if a tumor had been aggravated, certain symptoms would persist without letup. In this particular case, I find that these symptoms did persist right down to the date of the decedent's death.

Dr. Reuben J. Budd, who was the decedent's treating physician, testified that he saw Kling in the hospital...