Travers v. Gaynor.

• Decision Date: 22 October 1946
• Citation: 49 A.2d 309
• Parties: TRAVERS v. GAYNOR.
• Court: New Jersey Court of Common Pleas

49 A.2d 309

TRAVERS

v.GAYNOR.

Court of Common Pleas of New Jersey, Hudson County.

Oct. 22, 1946.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Law by Hugh Travers, employee, opposed by J. Gaynor, employer. From the award of the Workmen's Compensation Bureau, the employee appeals.

Petition dismissed.

Fred Friedman, of Newark, for petitioner-appellant.

Harry E. Young, of Newark, for respondent-appellee.

DREWEN, Judge.

Petitioner is a farrier, sixty-one years of age. He sustained an injury on January 30, 1943, for which an award was made on August 28, 1943, for six per cent. of total. On May 25, 1944, that award was increased by an additional five and one-half per cent. ‘due to the fact that the injuries extended into the shoulder.’ He now asks for a finding of further increase, with corresponding increase in the award.

The transcript leaves us completely uninformed of the nature of the accident. All we learn from the petition for increase now before us is that ‘while working for respondent-appellee petitioner injured his left arm, shoulder and back.’ Whether the accident was one that could account for the injury complained of, the record does not tell. In petitioner's behalf it is said that he was kicked by a horse, but that is not petitioner's testimony. In a question asked on his cross-examination, the accident is described as one in which ‘the horse shied while you were putting the shoe on * * * and struck your arm’; and to this petitioner assented. That is all there is.

As with the details of the original accident, so also with the proofs and merits underlying the first increase, there is a complete want of facts, for the transcript on this appeal contains nothing earlier than the present petition, which was filed July 13, 1945. The above recitals of former happenings are taken by us from the Deputy Commissioner's order dismissing the petition.

As stated, the present claim is for a second increase, and is based upon the conclusional allegation that ‘although petitioner was awarded 5 1/2 per cent. of total on May 25, 1944, petitioner feels that his disability has greatly increased since that date.’ The respondent's answer is that petitioner ‘is not entitled to any further compensation because of any accident which arose out of or in the course of his employment with this respondent.'

It is obvious that to find an increase we must first resolve a contrast as between a present and a former state of disability. Of what prior condition is the present condition an increase? From what degree of disability is a further increase to be measured? To such queries the transcript gives no answer. All we have from the petitioner himself is that ‘It is worse. It is getting no better.’ How or wherein it is worse he does not say except for a description of his presently claimed pain and impairment, and all of which he admits is identical with what he had to say about his condition at the time he was accorded the increase now in effect. For example: ‘I can't do anything with it. I could not shoe a horse; I could not take the shoe to the fire. I cannot hold horse's legs with it.’ All this, petitioner concedes, is a repetition of his former complaint.

Petitioner's medical experts are of no help. First there is Dr. Kummel. In dealing with percentage of increase he seems to have recognized a medico-legal conundrum and given it a Delphic answer. He said he ‘would be inclined’ to give petitioner about twelve and one-half per cent. of total. He had said also that he estimated disability of the arm at fifteen per cent. Upon being reminded of this, and asked whether the twelve and one-half per cent. of total was intended to include the fifteen per cent. of the arm, or to be added to it, the doctor made the statement: ‘It is hard to give an exact estimate in this case, because of his general condition. I would say it would include whatever I gave him the last time.’ This seems to us to have too much the aura of an exigent guess. What is ‘the general condition’ of which the doctor thus disposes? From the proof it is fairly to be inferred that petitioner is suffering from a chronic progressive disease of such a nature as to account in whole or in part for the disability complained of. Of this disease and its effects the same...