Monaco v. Albert Maund, Inc., A--173

• Decision Date: 15 January 1952
• Docket Number: No. A--173,A--173
• Citation: 17 N.J.Super. 425,86 A.2d 279
• Parties: MONACO v. ALBERT MAUND, Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 425

17 N.J.Super. 425

86 A.2d 279

MONACO v. ALBERT MAUND, Inc.

No. A--173.

Superior Court of New Jersey Appellate Division.

Argued Oct. 29, 1951.

Decided Jan. 15, 1952.

Wallace P. Berkowitz, Jersey City, for appellant.

Isidor Kalisch, Newark, for respondent.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

This is a workmen's compensation matter growing from an accident that happened outside of the State of New Jersey and therefore the decision of the Division of Workmen's Compensation is brought here for review and not to a County Court for a new trial. Rainess v. Grant Finishing Co., 132 N.J.L. 422, 41 A.2d 127 (Sup.Ct.1945), affirmed 133 N.J.L. 611, 45 A.2d 678 (E. & A. 1946).

The appellant sustained a concussion of the brain and a spinal injury February 26, 1947, and was immediately removed to a hospital where he remained until March 29, when he was taken to his home, but continued under the care of physicians. He has never fully recovered his health. The questions presented are: To what date did temporary disability continue? What medical expenses should be paid by the employer-respondent? What is the extent of permanent disability? The deputy director determined that temporary disability continued no longer than to June 2, 1947; that all medical expenses subsequent to November 1948 were 'unauthorized' and that respondent was not under any liability for them, and that permanent disability was 40 per cent of total.

Let us tabulate the medical treatment that appellant received after he was brought home from the hospital. He was first a patient of Dr. Nicola, whom he consulted every two months or so from April 7, 1947 to September 28, 1948. Heat treatments were prescribed and these he received once a week from April 14 to June 2, 1947. Then came a gap in active treatment until the following spring, when hypodermic injections were recommended. At last Dr. Nicola told appellant that no further treatments would help him; that he must rely on time and rest.

In the fall of 1948, appellant turned to Dr. Cornell, on whom he called for examination or physiotherapy treatments nine times between November 29, 1948 and February 1, 1949.

In January and February, he did traffic duty as a special policeman for four or five weeks, 'But I could not continue.' 'There were kindergarten children. * * * You have to watch them very closely. * * * I had to run from one corner to another, hold the children back, stopping cars, and then telling them to go ahead, and I just couldn't do that.'

On February 22, 1949, appellant became a patient of Dr. Taft, who called into consultation Dr. Ehrlich, a neurosurgeon, and they promptly put him to bed. On May 27, 1949, they performed an operation on his spine and found that 'the root of the fifth lumbar was congested and edematous' and also that there was 'some abnormal mobility at the lumbo sacral junction.' To correct this condition, they used a graft of his leg bone to make a lumbo sacral fusion. Appellant was kept in a plaster cast until July 1, 1949, and in a castex body jacket for a while thereafter. Dr. Taft continued to see appellant every few months until the hearing in September 1950. The doctor testified that improvement, although very slight, was observable until April 1950, when 'he reached a point where he improved no further.'

Respondent's medical expert was of the opinion that the condition of the spine which brought about the operation in May 1949, was not caused by the accident; but the deputy director found to the contrary and so do we. Respondent stresses that while the X-rays taken immediately after the accident showed a fracture of the fourth lumbar vertebra, they showed no injury to the particular vertebra which was operated on, namely, the fifth lumbar, or to its junction with the sacrum--that is, with the part of the spine that is fused with the pelvis. Before the accident, appellant's back had not troubled him; he had been a truck driver, in good health. There is no evidence of a second back injury, one occurring after the accident of February 26, 1947, and before the operation of May 27, 1949. The causal relation may be inferred. Galloway v. Ford Motor Co., 7 N.J.Super. 18, 71 A.2d 657 (App.Div.1950), affirmed 5 N.J. 396, 75 A.2d 855 (1950). Even if his condition was aggravated by ill-advised attempts to work in February, the original accident still remains the proximate cause of his disability. Selak v. Murray Rubber Co., 152 A. 78, 8 N.J.Misc. 838 (Sup.Ct.1930), affirmed 108 N.J.L. 548, 159 A. 93 (E. & A. 1932).

Let us first consider the question of temporary disability. The statute provides that compensation shall be paid during the period of temporary disability, not exceeding 300 weeks. R.S. 34:15--12(a), N.J.S.A. And that the period runs 'to the first working day that the employee is able to resume work and continue permanently thereat'. But deduct 'any days and fraction thereof the employee was able to work during this time'. R.S. 34:15--38, as amended L.1945, c. 74, § 13, N.J.S.A. This section first came into our statute in 1921, L.1921, c. 230, § 3. In an early case in the common pleas, Judge Osborne had held that temporary disability continued until the workman had sufficiently recovered to return to work. Creagh v. Nitram Co., 35 N.J.L. 328; affirmed Nitram Co. v. Court of Common Pleas, 84 N.J.L. 243, 86 A. 435 (Sup.Ct.1913). Two years later, temporary disability was defined as 'a condition that exists until the injured workman is as far restored as the permanent character of the injuries will permit. An apt illustration is a case where there has been a loss of both arms. The temporary disability to be considered in such an instance is the physical state of the patient until the stumps are healed and he is able to get about.' Vishney v. Empire Steel, etc., Co., 87 N.J.L. 481, 95 A. 143, 144 (Sup.Ct.1915). Then came the 1921 enactment, now section 38, which is, however, not discussed or given apparent effect in any reported case. The meaning of the section is not readily apparent. It cannot well apply to one who is permanently and wholly disabled, and who is never able to go back to work. In our opinion, the principal object of the section was to encourage an injured workman to return to work at an early date. If he makes the attempt too soon, and finds he cannot continue at work, he does not thereby forfeit his right to compensation for temporary disability, although the days he actually works must be deducted. Section 38 supplements the rule of Vishney v. Empire Steel, etc., Co. and does not supersede it. Generally, temporary disability continues 'until the employee is able to resume work and continue permanently thereat' or until he 'is as far restored as the permanent character of the injuries will permit,' whichever happens first. Cf. Mt. Olive Coal Co. v. Industrial Commission, 295 Ill. 429, 129 N.E. 103 (Ill.1920).

In the present case, there is no...