Simon v. R. H. H. Steel Laundry, Inc., 62749

• Decision Date: 13 February 1953
• Docket Number: No. 62749,62749
• Citation: 95 A.2d 446,25 N.J.Super. 50
• Parties: SIMON v. R. H. H. STEEL LAUNDRY, Inc.
• Court: New Jersey County Court

Page 50

25 N.J.Super. 50

95 A.2d 446

SIMON v. R. H. H. STEEL LAUNDRY, Inc.

No. 62749.

Hudson County Court Law Division, New Jersey.

Feb. 13, 1953.

Mortimer, Wald, Newark, for petitioner-appellee.

Shaw, Hughes & Pindar, Newark, for respondent-appellant (Robert Shaw, Newark, of counsel).

DREWEN, J.C.C.

This is an appeal from an award of workman's compensation. The accident claimed to be the cause of the injury alleged occurred some 13 years ago. The original claim proceedings, instituted in 1940 and resulting in a settlement approved by the Bureau, is one of the subjects of contention on this appeal. After the definitive hearing now before us, held March 26, et seq., 1952, the deputy director found 65% Of total and permanent disability and awarded compensation accordingly. The injury as claimed is a disabling psychoneurosis, without physical or neurological injury. It follows that in the nature of things injury and disability here are one and the same.

Petitioner had been in respondent's employ as assistant steam engineer for a period of some 12 years, when on October 25, 1940 a high-pressure steampipe burst in the boiler room where he was at work. The testimony having reference to it is such that I deem it fair to regard the explosion as violent and terrifying. Respondent's witness Colicchio says he found entry to the boiler room, immediately after the explosion, impossible because of the heat of the escaping steam. Denehy, another witness for respondent, and who was with petitioner when the accident occurred, testified in part, on cross-examination:

'Q. Your nerves went after that explosion? A. Yes. Ever since that I get too nervous, get upset too easy, you know.

'Q. You were always in good health before? A. Yes, I was.'

And also: 'I can't be a fireman no more. You have to have good nerves for that you know.' An incident of the explosion was the death of petitioner's immediate superior, one Christiansen, who, in attempting to enter the boiler room through a cellar window, suffered a heart attack and died before medical aid could be summoned. There is no direct proof that petitioner witnessed Christiansen's death, but he very soon learned of it, and I judge it fair to assume that it became an added factor in the psychic impact of the experience. At the first hearing in 1941 petitioner gave his own immediate reaction: 'There was a terrible explosion knocked me like somebody grabbed me and knocked me down. I lost my mind in a second. When I wake up I see there was all steam and I tried to escape from the steam. I see the exit and I tried to get out.' And again on the present hearing:

'Q. When this pipe exploded what happened to you? A. I don't know anything, because I just was unconscious. I can't remember. When I wake up I see I was terrible, just like in a mine, I see like in a door, exit door. I start walk away.'

On both sides there is testimony by specialists in neuro-psychiatry. To an important extent there is agreement between them. Respondent's Dr. Blumberg and petitioner's Dr. Stockfish both say that the disability is total. It is not disputed that he is physically able to work, nor that the remedy lies in making the inducement to work more compelling than the inducement to remain disabled. Yet all the doctors say the condition is an illness, and one that requires skilled professional treatment. Petitioner's expert finds that the accident was the 'acute precipitating factor' causing his present 'severe state of psycho-neurosis.' One of respondent's experts lays it to a paranoid condition brought about or aggravated by a dispute over assigned work following the explosion and complicated by emotional disturbances and paranoid trends allegedly having their origin prior to the accident. Another of respondent's experts says there can be no telling how the disability was caused, without a protracted period of conditioned observation in a hospital. And there is also scientific exposition at some length of the desirability and curative effect of compelling the patient to rely on his own resources by denying to him all others, a dictum that is met, notwithstanding it may be prefectly sound, by the simple fact that judgment in workmen's compensation cannot be a means of therapeutic discipline, as such.

Petitioner continued to work for about five days after the explosion, when, as respondent says, he was 'laid off,' but as petitioner says, 'Not laid off, I couldn't move any more. I couldn't get up from the bed. * * * I couldn't get up no more.' About three months later he returned to work, but had to leave after several days because he found the work assigned him, that is laboring work, too difficult. He has not worked since.

True, there are some things in petitioner's record of employment that might indicate a predisposition to undue psychic or emotional shock. But as already mentioned, they were not such as to disable him from doing his work so as to continue in respondent's employ. There was an occasion in 1936 when he was out for a considerable time due to an illness that culminated in an appendectomy; in 1940 he had a leave or 'vacation' of three months, upon his return from which he felt greatly benefited and resumed his work with apparent satisfaction, until the time of the accident. Upon this question of prior qualifications of health, and of freedom from physical defects and disabilities in the workman, see Schust v. Wright Aeronautical Corp., 7 N.J.Super. 54, 71 A.2d 894 (App.Div.1950); Bernstein Furn. Co. v. Kelly, 114 N.J.L. 500, 177 A. 554 (Sup.Ct.1935), affirmed 115 N.J.L. 500, 180 A. 832 (E. & A.1935); Vandenberg v. John DeKuyper & Son, 5 N.J.Super. 440, 69 A.2d 581 (App.Div.1949).

It must be admitted that the intangibles in a problem of this kind present difficulties indeed. But inherent perplexities cannot be permitted to defeat an award where the requisite standards of proof have otherwise been met. Respondent has from the very beginning sought to attribute the disability to causes for which it is not legally responsible. That contention casts the burden of proof upon it. Atchison v. Colgate & Co.,128 A. 598, 3 N.J.Misc. 451 (Sup.Ct.1925), affirmed 102 N.J.L. 425, 131 A. 921 (E. & A.1926). Petitioner's passing from a state of comparative health to a sudden and prolonged period of disability is itself a strong probative circumstance when the point of transition is so sharply marked, as here, by the happening of the accident. Kolesnik v. Irvington Varnish & Insulator Co., 120 N.J.L. 8, at page 12, 197 A. 727 (Sup.Ct.1938). As to sufficiency of proof under circumstances like those embodied in the present transcript, see Jackson v. Delaware L. & W.R.R. Co., 111 N.J.L. 487, 170 A. 22 (E. & A.1933); Jackson v. N.Y. Shipbuilding Co. 191 A. 289 15 N.J.Misc. 367 (Sup.Ct.1937); Furferi v. Pennsylvania R.R. Co., 117 N.J.L. 508, 189 A. 126 (E. & A.1937).

One of respondent's contentions is that the result of the proceedings had on the first presentation of the claim in the Bureau was such as to render the cause Res judicata. Involved in this contention is another--that the present petition is barred by the statute of limitations. The cause was commenced by original petition filed December 11, 1940. It came on for hearing March 11, 1941. In the proceedings that followed the deputy commissioner's approval of a compromise agreement was sought. Testimony was presented and at its conclusion the deputy declared: 'The settlement is approved.' I think it is of no moment that records and papers relating to the matter are denominated or described in such terms as 'rule for judgment' and the like. The plain fact is that the actual occurrence was such as to preclude a consequent final judgment. The provision made was for ten weeks of temporary disability at $20 per week and 7 1/2% Of total permanent disability equivalent to 37 1/2% Weeks at $20 per week. These payments were made, the last one on November 14, 1941. The present petition was filed March 29, 1951, in which petitioner prayed for an adjudication of his claim on the merits. That the proceedings in 1941 did not result in a final determination on the merits is placed beyond question by the statement made at the time by respondent's counsel, in part as follows: 'Now, insofar as the respondent is concerned, we did deny, and still emphatically deny, that this petitioner suffered any accident at the time, and he suffers any disability as a result of this accident, of this alleged accident. The respondent waives none of its defenses in arriving at this compromise.'

The provision of the relevant statute as it stood in 1940 (R.S. 34:15--22, N.J.S.A.) presupposes that no determination is final in which the 'amount agreed upon is less or more than the injured employee or his dependents are properly entitled to receive.' Considering this feature alone, an examination of the 1941 proceedings shows that in the testimony of petitioner and of Dr. Yolken a disability is indicated clearly in excess of the 7 1/2% Allowed by the settlement. Respondent endeavors to distinguish the cases on this subject from the situation before us, but entirely without success, in my opinion. From an examination of these decisions it would seem that the arguments made from time to time for the finality of Bureau settlements have just about exhausted all possible contentions for the establishment of such dispositions as Res judicata. P. Bronstein & Co., Inc., v. Hoffman, 117 N.J.L. 500, 189 A. 121 (E. & A.1937); Streng's Piece Dye Works, Inc., v. Galasso, 118 N.J.L. 257, 191 A. 874 (E. & A.1937); Stroebel v. Jefferson Trucking & Rigging Co., 125 N.J.L. 484, 15 A.2d 805 (E. &...