Ricciardi v. Marcalus Mfg. Co.

Decision Date03 April 1958
Docket NumberNo. A--68,A--68
Citation140 A.2d 215,26 N.J. 445
PartiesJosephine RICCIARDI, Petitioner-Respondent, v. MARCALUS MANUFACTURING COMPANY, Respondent-Appellant.
CourtNew Jersey Supreme Court

Edward B. Meredith, Trenton, argued the cause for respondent-appellant.

Isadore Rosenbloom, Woodbridge, argued the cause for petitioner-respondent (Messrs. Marcus & Levy, Paterson, attorneys).

The opinion of the court was delivered by


This is a workmen's compensation proceeding. The Workmen's Compensation Division entered a judgment of temporary and permanent disability in favor of the petitioner. On appeal to the Passaic County Court, that court after a trial De novo on the record, entered a judgment affirming the Division. The respondent pursued a further appeal to the Appellate Division, which court affirmed the two lower tribunals. 47 N.J.Super. 90, 135 A.2d 339, 345 (1957). We granted certification. 25 N.J. 405, 136 A.2d 677 (1957).

The issue concerns the scope of appellate review on factual findings in workmen's compensation cases, and the application of the appropriate review standard to the evidence in this case.

On the scope of review the Appellate Division after an exhaustive analysis of the evidence held:

'It is settled that in review of workmen's compensation cases great weight must be given to the judgment of the County Court. See Augustin v. Bank Building and Equipment Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957). We think this principle applies here, notwithstanding we find the ruling in the Division of no value because of absence of pertinent findings (other than the one unwarranted finding mentioned above). The County Court judgment will not be disturbed unless a study of the record indicates that the interests of justice plainly call for it. Ibidem; Mewes v. Union Bldg. & Construction Co., 45 N.J.Super. 88, 90, 131 A.2d 561 (App.Div.1957). Ordinarily a fair criterion for that purpose is the existence of substantial evidence to support the findings underlying the judgment. Cf. Augustin v. Bank Building and Equipment Corp., supra (44 N.J.Super. at page 250, 130 A.2d at page 74). In the present case the medical factual issues are closely balanced, the predominance of the credible and logically persuasive proofs leaning, in our candid opinion, toward the position of the respondent. We think this is so particularly in respect to the issues as to whether the trauma affected the tumor itself, and, if it did or not, whether any increased rate of growth of the tumor resulted therefrom. But we cannot say that there was not substantial evidence in support of the conclusion of the County Court on these matters nor that the evidence Contra overwhelmingly outweighed the supporting proofs.'

'Substantial evidence' is not the guiding criterion for appellate review of factual issues in workmen's compensation proceedings in this State.

It is the duty of the reviewing court to weigh the evidence and determine whether the claimant has sustained the burden of proof of an accident arising out of and in the course of his employment by a preponderance of the evidence. Full and respectful consideration of the views expressed, on both fact and law, by the Division and intervening appellate courts, shall be given.

'R.R. 1:5--4(b) provides:

"On a review of any cause, criminal or civil, involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."

Compare R.R. 4:88--13.

From a study of the entire record, it is the function and duty of the reviewing court to make a determination according to its considered judgment, and in doing so it is mandatory only to give due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses. A finding of fact in the Division or appellate courts does not lessen the duty of the appeal court to determine the facts and evaluate them by full investigation and analysis of the evidence so as to adjudge whether the general finding is consistent therewith, i.e., if upon such total consideration of the record and views expressed below, it is believed the judgment both in fact and the applicable law from which appeal is taken is correct, it should be affirmed; if the judgment is erroneous, it should be reversed or modified.' Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958) decided this date.

Accordingly, we will weigh the evidence in order to determine whether the petitioner has sustained her burden of proof.

Petitioner, 46 years old at the time of the industrial accident, was a sheet wax packer. Her job entailed the piling and handling of ten-pound packages of sheet wax. On December 11, 1953, at approximately 11:15 A.M., one of the packages she was handling slid from atop of a pile and struck her on the left breast. The ensuing pain was immediate and severe, causing her to cease working for 10 or 15 minutes. During the lunch hour she examined the breast in the ladies' room and observed a red bruise approximately two inches in diameter. Three days after the accident, on December 14, 1953, the petitioner first noticed a lump on her breast. The following day she visited the plant physician, Dr. Bongiorno. Upon examination the doctor diagnosed the injury as a possible hematoma (tissue hemorrhage) and prescribed heat treatments.

Petitioner visited her family physician, Dr. Curtis, that same evening and he also recommended heat. Petitioner testified that the lump grew progressively larger and that she went to a Dr. Gallo who advised her that surgery would be necessary. She then returned to her family physician and upon his recommendation consulted Dr. Bender, a surgeon. Neither Dr. Curtis nor Dr. Gallo were called to testify at the hearing.

On March 11, 1954 the growth was diagnosed as cancerous and Dr. Bender performed a radical mastectomy (removal of left breast).

At the time of the hearing in May 1956 petitioner was in generally good physical condition and was working at a lighter job, having returned to work in August of 1954.

There was a general agreement of medical opinion at the hearing that the cancer pre-existed the accident of December 11, 1953. There was further agreement that it would have been necessary to remove the breast even if there had been no traumatic insult to the malignant area.

The only factual issues projected in this appeal is whether the trauma had aggravated, in the sense of accelerating the pre-existent condition. Inherent in this question is the further dispute concerning whether the trauma occurred to the cancerous area or to the healthy surrounding tissues. We might at this point add one Caveat. On the question of the legal right to recover on the tendered hypothesis of aggravation, the Appellate Division held:

'* * * it may appear questionable, in terms of the theory of compensation recovery as based upon disability or death arising from accident, N.J.S.A 34:15--12, 13, that a faster rate of tumor growth should be relevant to the right of recovery, where, as here, there is no dispute but that removal forthwith of the entire breast, with such impairment or disability as would have attended such surgery, would have been required even if the supposed trauma had never taken place. We are satisfied, however, that the controlling decisions pertinent to this question, though not directly in point, require the conclusion that if, in fact, the accident caused this tumor to grow faster than it would have otherwise, there must be recovery for all of the disability incidents of the disease notwithstanding that such increased rate of growth did not have anything to do with the medical decision to operate beyond making the necessity to do so manifest earlier than otherwise.'

Because of the view we take, as hereinafter developed, that the petitioner has failed to sustain her burden as to whether there was aggravation of the cancer in fact, we deem it inappropriate to pass on that question within the factual context of this case. We will assume, Arguendo, that the statute contemplates a right to recover.

We turn now to an examination of the evidence in order to determine whether the petitioner has sustained the burden of proof on her proffered hypothesis that the accident of December 11, 1953 resulted in a more rapid enlargement of the tumor than if there had been no accident.

One of petitioner's theories concerning aggravation resolved around the rapid growth of the tumor from the date of the accident until the date of surgery some three months later. When first discovered, she testified that the lump was the size of about 'the tip of my pinky' and that by March 11, 1954, the date of surgery, it was the size of the end of her little finger (distal phalange). Petitioner estimated that it doubled in size during the three months prior to surgery. Her testimony was corroborated by that of several of her co-workers who testified that the growth grew in size. One co-worker compared its original size on December 14, 1953 with a 'small hazel nut,' and prior to hospitalization as 'a little larger than a nickel.'

The medical evidence indicates little increase in size. Dr. Bongiorno, the plant physician testifying for the respondent, estimated on palpation on December 15, the date of his examination, that the growth was 1 cm. (2/5 ) to 1/2 in size. Dr. Bender, the operating physician estimated that on the date of surgery it was 1 cm. in diameter. Examination at biopsy indicated its size to by 1 1/2 cms. by 1 cm., while pathological examination in the laboratory showed the actual size to be 1 cm.

Dr. Bender was the first medical witness called by the petitioner. He first saw the petitioner on March 2, 1954, but at that time she never gave him any history of the accident. It was only after her...

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