Pellegrino v. Monahan McCann Stone Co.

• Decision Date: 24 November 1959
• Docket Number: No. A--567,A--567
• Citation: 162 A.2d 97,61 N.J.Super. 561
• Parties: Argentino PELLEGRINO, Petitioner-Respondent, v. MONAHAN McCANN STONE COMPANY, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 561

61 N.J.Super. 561

162 A.2d 97

Argentino PELLEGRINO, Petitioner-Respondent, v. MONAHAN McCANN STONE COMPANY, Respondent-Appellant.

No. A--567.

Superior Court of New Jersey Appellate Division.

Argued Oct. 27, 1959.

Decided Nov. 24, 1959.

Isidor Kalisch, Newark, argued the cause for respondent-appellant.

Aaron Gordon, Jersey City, argued the cause for petitioner-respondent.

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

By this appeal appellant seeks the reversal of a judgment entered in favor of petitioner in the County Court affirming the judgment of the Workmen's Compensation Division.

We have analyzed the evidence in the case 'to determine the facts and evaluate them,' giving 'due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses.' Russo v. United States Trucking Corp., 26 N.J. 430, 435, 140 A.2d 206, 209 (1958) and Ricciardi v. Marcalus Mfg. Co., 26 N.J. 445, 448, 140 A.2d 215 (1958). The sole issue presented by this appeal is whether or not petitioner established by a preponderance of believable evidence that the lost vision of his right eye was causally related to his admitted employment. It is not denied that petitioner suffered a detachment of the retina of that eye and a resultant toal loss of vision therein.

Preliminarily, and because of appellant's claim that it is a significant factor, we note and hereinafter refer to the chronology of events leading to the judgment based on the injury alleged to have been sustained on February 9, 1955. The petition was filed July 12, 1955. The initial date of the formal hearing was May 2, 1957. The second day of the hearing was December 19, 1957. The Deputy Director's decision was rendered April 29, 1958 and judgment thereon entered May 20, 1958.

Petitioner claims that the accident on which the judgment in his favor was based occurred as he was engaged in his first day's work for appellant. On that day, February 9, 1955, he had commenced work at 8 A.M. Although by profession a sculptor, petitioner's initial work for appellant was in cutting a mold from a block of marble weighing about 300 pounds. The cutting instrument was a chisel powered by a hammer approximately a foot in length and weighing about two pounds operated by compressed air. A foreman of appellant described that a cutter, using such an instrument, would with one hand grip the cutting tool set against the stone and hold the vibrating hammer in the other hand.

Petitioner, testifying that there was vibration from the use of the air hammer, said: 'I get shaking, vibration in the arm.' He stated that he had been using the hammer steadily during the forenoon; that at about 11:30 A.M. he had 'moved' the large block of marble to obtain more light for his work. He states: 'I went to the block to move it over to a little light, to have more light, and about one o'clock I

'The Witness: Yes, sir. described his movement of the marble slab, which was on top of a bench, as follows:

'Q. How did you move it when you moved it? A. Lift it up, move one place to the other.

'Q. Well, did you lift it up entirely in your hands? A. No, to one side.

'Q. To one side you moved it? A. Moved it.

'Q. Was it easy for you to do? A. No, it was heavy.

'Q. Well, all I ask you to do is, in your own words, for you it was heavy. Will you tell the Court in your own words just what you mean by that? A. Well, I had no light where I worked, because it was a mold, a heavy mold, I had no light, I tried to turn to get some light, because it is important to have light to cut down a piece of mold work.

'Q. All right. Now, what I want you to do is describe--

'The Deputy Director: Was this thing hanging or something?

'The Witness: On top of a bench.

'The Deputy Director: It was on a bench?

The Witness: Yes, sir.

'The Deputy Director: How did you pick it up, move that 300 pounds?

'The Witness: Lifting it one side and turn around.

'By My. Gordon:

'Q. Turned around to get light, that is what you are telling us? A. Yes, sir.

'Q. What I want you to tell the Court, you say this was heavy, what do you mean by that, just how heavy was it for you to move, tell the Court how you were lifting it, and why you say it was heavy? A. I moved to get the light, it was a heavy piece. Move it to get light because I have no light where I was.

'Q. What did you move it with? A. I lift it up with my hand. After a little while lifting it up I start to see black spots in my right eye.

'Q. About how long after you moved it did you start to see black spots in front of your eyes?

'Q. How long? A. Well, a little while, I don't known how long it was. I saw black spots after a little while I lifted the block. I had no watch with me, to look at a watch.

'Q. What time do you go to lunch? A. Twelve o'clock.

'Q. Did you see black spots before or after lunch? A. After I lift the block I see black spots.

'Q. What I am trying to get at, you say it was a little while after? A. It was 11:30 I lifted the block.

'Q. How long after that, do you know how long? A. A little while, ten minutes. I had no watch with me I recall soon as I finished lifting the block I see the black spots.

'Q. When you told us before that you saw black spots at one o'clock, what did you mean by that? A. Maybe I see some big--first see little black spots, then after a little while they get bigger.

'Q. I see. When you first started to see black spots, was it before you went to lunch? A. When?

'Q. You say that this was about 11:30 you lifted this? A. Yes, sir.

'Q. And did you say a little while after that you first started to see black spots? A. Very little.

'Q. Yes, very little. In the beginning, then, you told us earlier that you went to lunch at twelve o'clock. Did you start to see these black spots for the first time before or after you went to lunch? A. Before.

'Q. As the day wore on, did the black spots get any better or worse? A. Worse.'

Petitioner further testified that although he worked until the end of his working day at 3:30 P.M. he continued to see 'black spots'; that his vision became increasingly impaired. He was unable to work the next day and telephoned appellant's bookkeeper and 'told him what happened the day before over there.' He has not worked since and has never regained the sight in his right eye. On February 10 he consulted his family doctor, a general practitioner, who thereafter referred him to an ophthalmologist, Dr. Arnold W. Forrest, who saw him the first time on March 18, 1955. Petitioner testified he had not been aware of any eye ailment prior to February 9.

Dr. Forrest testified that the first examination disclosed 'light perception vision * * * everything obscurred by vitreous hemorrhage in the right eye.' He testified that thereafter he examined petitioner's eye on March 24, April 1, April 8, April 22 and May 4, 1955. On the last mentioned day the examination revealed that the vitreous was slightly cleared and there was 'a suggestion of retinal tissue below'; that it was then for the first time the doctor was 'able to observe the retinal field'; that theretofore the hemorrhage had precluded the examination of the anterior of the eye; that he examined petitioner's eye again on May 13, June 1, June 10 and July 12, 1955. He did not examine petitioner again until December 13, 1957, approximately one week before the aforesaid adjourned hearing in the Division on December 19, 1957. At that time he found that when 'dilating the pupils of the right eye there were scattered lens changes, especially the fundus showed retinal detachment with scattered folds, there are three large holes in the lower quarter of the retina.' He said that was indicative of 'degenerative retina'; that petitioner's condition would not improve and that he was industrially blind.

In response to a hypothetical question Dr. Forrest testified that in his opinion petitioner's eye condition was 'caused by the lifting of the marble or the use of the air hammer or both'; that the lifting effort increases the 'intravascular pressure and this could certainly result in damage and the patient would then note at varying periods what a laymen would describe as spots before his eyes.' He continued as follows:

'* * * As time goes on with perhaps using an air hammer, the jostling of the hammer, that would increase the hemorrhage. It was undoubtedly increased with the use of the air hammer. This hemorrhapge then clouds, the vision is blurred, the interior of the eye, from the examining physician. As time goes on this hemorrhage may organize, that is, form scar tissue.

'Q. Did it remain here in this case? A. There are formations of strands in the fibers and this results in detachment of the retina. It is possible for the detachment to occur early, of course, following the hemorrhage and to exist concurrently with the hemorrhage in the eye. The detachment in the case of this petitioner has resulted in irrevocable industrial blindness in the right eye.

'Q. You used the words 'It is possible for detachment to occur,' when? A. The hemorrhage when it occurs may be evidenced with the detachment at the same time or may have caused the detachment to occur later on.

'Q. Doctor, is an air hammer, a compressed air hammer when vibrating against marble a competent, producing factor of a detached retina or retinal hemorrhage? * * * The Witness: Yes, sir.

'By Mr. Hubley:

'Q. But, it would be some compression in your opinion toward the man's body? A. I would concede an air hammer, if small, it could not be related to the injury.

'Mr. Hubley: That is all.

'By Mr. Gordon:

'Q. This air hammer Counsel has asked you about, do you know the size of it?

'Mr. Hubley: I don't think I have showed it to him.

'By Mr. Gordon:

'Q. Would you say that the vibration as described by me of both arms when he held it against the marble he was working on, powered by compressed air, would be a competent, producing factor to produce a retinal...