Mcnaboe v. Gen. Motors Corp...

• Decision Date: 27 May 1946
• Citation: 47 A.2d 345
• Parties: McNABOE v. GENERAL MOTORS CORPORATION.
• Court: New Jersey Court of Common Pleas

47 A.2d 345

McNABOE

v.GENERAL MOTORS CORPORATION.

Court of Common Pleas of New Jersey, Hudson County.

May 27, 1946.

Appeal from Workmen's Compensation Bureau.

Proceedings under the Workmen's Compensation Act by Eugene McNaboe, claimant, opposed by General Motors Corporation, Hyatt Bearings Division, employer. From a decision of the Workmen's Compensation Bureau denying compensation, the claimant appeals.

Reversed.

Rothbard, Harris & Oxfeld, of Newark, for petitioner-appellant.

Carpenter, Gilmour & Dwyer, of Jersey City, for respondent-appellee.

DREWEN, Judge.

Claim petition was filed in the Bureau for an award to cover what is described in the petition as ‘compensable left hernia; aggravation of pre-existing right hernia; injuries to body and internal injuries.’ The evidence confines the injury to a left inguinal hernia.

The case comes within the provisions of Rev.Stat. 34:15-12, par. x, N.J.S.A. The hernia was not shown to be ‘a real traumatic hernia’ as described in the statute and it therefore must comport with the five prescribed tests prerequisite to recovering.

The claim petition was dismissed below. The ground of dismissal is set forth in the findings of fact and determination as follows: ‘Upon consideration of all the testimony in this case I conclude that the case is not compensable. The petitioner has failed to prove that he was in such physical distress by reason of a hernia that the attendance of a licensed physician was required within twenty-four hours of the occurrence of the hernia. In fact, there is no evidence of any immediate descent.’ The latter reference to proof of immediate descent was later deleted by an amending order of the Deputy Commissioner. As we judge the case, there was no reason whatever for dismissing the claim petition, and every reason for sustaining it as a claim for a left inguinal hernia.

The case presents a body of fact at once decisive and undisputed. On January 13, 1945, petitioner was loading a hand-truck with fifty bags of sand. In the history given by him to his physician Dr. Block, this work is shown to have involved the lifting of as much as 100 pounds. Having loaded the truck he was in the act of pulling it to an elevator when he was seized with a violent pain in the left groin; immediately he sat down for about ten minutes because he could not stand the pain. Thereupon, it being lunch-time, he went to a restaurant, had lunch and returned.

He then went to the store-room where he had a little work to do, as he states it, and soon thereafter while thus engaged he fainted. He was taken to the First Aid Room on a stretcher. He was there under the care and observation of one or more nurses while awaiting the arrival of the plant physician Dr. Paul. Petitioner states that after getting from him a statement of the occurrence, Dr. Paul ‘looked him over’ and sent him back to the floor to work. Dr. Paul states that an examination then made by him showed that the rings were large on both sides and that there was a protrusion on both sides when petitioner stood up; that petitioner said he felt all right and wished to return to work, which the doctor allowed, telling petitioner not to do any heavy pulling or lifting. It appears further upon petitioner's arrival in the plant infirmary he was observed to have a large mass protruding from the left groin, all of which was reported by the nurses to Dr. Paul. Dr. Paul suggested that petitioner procure a truss, which he subsequently did through his own physician, Dr. Block. Upon his arriving at home in the evening petitioner noticed a lump in his left groin. Two days later, January 15th (the intervening day being a Sunday), petitioner returned to Dr. Paul, who then observed that petitioner had a large protrusion in the left groin, ‘a definite mass', which the doctor characterized as reducible. It was quite apparent to the doctor, he says, that petitioner had a hernia. At no time did Dr. Paul treat petitioner, but after the examination of January 15th he referred him to his own physician. Petitioner then placed himself in the hands of Dr. Block, who administered injections, giving ten treatments in all. Dr. Block first saw petitioner on January 19th, when petitioner gave him a history that conforms with his testimony. Dr. Block found a left inguinal hernia. His treatment continued from January 19, 1945 until he discharged the patient as cured on May 28th following. It was Dr. Block's hypothesis that the incident of the described lifting ‘probably pushed it out.’

It is our judgment that beyond question the five statutory tests are met. The first of these is the requirement that the descent of the hernia immediately follow the cause. Not only is there the evidence of protrusion at the time of the first examination by Dr. Paul in the infirmary on the day of the accident, but there is also the finding of the lump by the petitioner himself the same evening. Protrusion is the manifestation of descent. The question of the immediacy of descent was dealt with by the Supreme Court in McBride Co., Inc., v. Kuehn, 168 A. 64, 11 N.J.Misc. 764, following the principle enunciated in Borodaeff v. Province Line Dairy, Inc., 109 N.J.L. 25, 160 A. 513, affirmed 110 N.J.L. 20, 163 A. 892. In the latter case the descent was noticed the morning after the strain, eighteen hours later. It was held that the phrase ‘immediately following the cause’ means ‘soon enough and in such manner as to make it appear clear that the descent was the effect of the strain...