Welch v. Essex County .
| Decision Date | 05 August 1949 |
| Citation | 68 A.2d 787 |
| Parties | WELCH v. ESSEX COUNTY (two cases). |
| Court | New Jersey County Court |
OPINION TEXT STARTS HERE
Workmen's compensation proceeding by Wilfred J. Welch, employee, opposed by the County of Essex, employer.
The claimant died and similar proceedings were instituted by Ann Welch, as general administratrix of estate of Wilfred J. Welch, and individually as the mother of Margaret Welch.
The causes were consolidated for hearing.
The Workmen's Compensation Bureau denied compensation, and petitioners appealed.
The County Court, Law Division, Hartshorne, J.C.C., reversed the order and held that the evidence established that an accident sustained by the employee aggravated a pre-existing cancerous condition and that a deposition taken prior to his death was admissible at the subsequent hearings.
Avidan & Avidan, Newark, for petitioners-appellants.
O'Brien, Brett & O'Brien, Plainfield, for respondent-appellee.
HARTSHORNE, J.C.C.
Welch, petitioner-appellant in this Workmen's Compensation appeal proceeding, a court attendant, attached to the Essex County Courts, was admittedly totally and permanently incapacitated by a cancer of the chest. This soon spread throughout his body, causing his death April 14, 1948. He filed a petition for compensation for his primary total incapacity, alleging that the cancer was aggravated by a blow he received in his chest December 23, 1946, when, while he was in his occupation as driver of the prison van, he was hit in the chest and knocked down by the swinging open of the heavy front door of the van. Before the hearing on this petition, he had become bedridden and in extremis, his testimony as to the accident and his symptoms thereafter, upon the basis of which the medical testimony was given, having been taken on deposition at his home. The court order, permitting the taking of this testimony, provided that it was to be ‘taken for all purposes as though it had been taken in open court.’
Shortly thereafter, he died from this cancer. Thereupon the requisite petition was filed by his wife, as administratrix of his estate and as mother of his daughter. Since the main issue in both causes-the compensability of the cancerous condition, which first totally incapacitated him, and then killed him-was the same on both petitions, the causes were consolidated for hearing. The basic issue at this hearing was, of course, the medical fact question, whether this cancerous condition was aggravated by this accident, which clearly arose ‘out of and in the course of his employment.’ To this accident the only eye witness was the deceased petitioner, who described the occurrence in detail on his deposition under lengthy cross-examination. The other witnesses saw him pick himself up off the ground, but did not see the blow that knocked him to the ground. As to his symptoms, it is undisputed that the petitioner was a particularly robust individual, apparently in perfect health previous to the above accident. He had had an earlier blow to his chest February 8, 1945, when, while driving the Essex County prison van in a snow storm, he was thrown against the steering wheel, which hit him in the center of his chest also. But from this relatively minor injury, he recovered shortly, without any apparent continuing difficulty.
The above accident, in December 1946, caused black and blue marks ‘all over my chest, and fractured a right lower rib.’ Within a week or two after this accident, he had a ‘terrific pain in my chest,’ which ran up from his left hip to his neck. He started spitting up blood within a couple of weeks after the accident. The physician in charge of the court attendants, Dr. Hanteman, treated him at first only for the fractured rib. However, when the symptoms, instead of abating, continued to increase, Dr. Martland, the Essex County Medical Examiner, was called in, and when a bronchoscopy was done, it was then for the first time suspected, in June 1947, that Welch had a serious growth in his lung.
Thereupon, Welch was sent to the Memorial Hospital, in New York, where he was examined July 3, 1947, by Dr. Pool, one of the head men. Dr. Pool diagnosed the situation as critical, operated on Welch's left chest July 18, and found a ‘mass in the immediate mid-portion of the left lung * * * diagnosis of lung cancer.’ The operation disclosed, however, that the cancer was too far advanced for removal, due to ‘widespread dissemination of the cancer throughout his body,’ and thereafter petitioner died from oatcell cancer April 14, 1948.
Such are the basic facts, lay and medical, on which this cause depends. The issue-one of medical fact-is whether this cancer, which admittedly preexisted the accident of December 1946, and which for the first time became known to Welch, and caused him increased suffering, immediately thereafter, was aggravated by this accident, or whether this suffering, which first became patent right after the accident, was entirely disconnected therefrom, and due solely to the normal progress of the preexisting disease.
On this medical issue, for petitioner, appear not only both treating physicians, but as a consultant, Dr. Martland, the Essex County Medical Examiner, and Dr. Reilly, an expert. For respondent, appear two experts, one of whom had not seen the patient at all, another of whom had examined him but once, the day his deposition was taken.
Dr. Pool, of course, not only because of his experience, as one of the head men in the largest cancer institution in the country, but as the sole man who ever saw the cancer inside Welch's chest, is in a particularly advantageous position to advise the court as to the facts. Neither he nor any one else considers the 1946 accident as the cause of the cancer. He says this blow was ‘an aggravating factor in the rapidity of growth of the lung cancer which was evidenced in March of the next year following the accident * * * the man reasonably and probably died of lung cancer, and it is my opinion that the aggravation by the trauma under the circumstances was probably under the circumstances an aggravating factor.’ It was his hypothesis that the ‘capsule or lymph node of the primary growth’ was ‘stimulated by ripping or tearing’ when Welch was ‘struck in the center of the chest’; that this caused ‘extravasation of blood or hemorrhage into the interior’ of the man's body which ‘caused an acceleration of the growth.’ He of course did not see signs of this extravasation of blood, since the operation was ‘seven months following the trauma.’ In any event, he was visualizing a microscopic rupture, not one visible to his naked operating eye.
While Dr. Hanteman, Welch's original treating physician, is not a cancer specialist, it is his opinion too that the ‘trauma was a reasonable aggravating cause from the preexisting condition’ of cancer. He bases his answer on ‘clinical grounds,’ i.e., that while before the injury the man had been in apparent good health, immediately thereafter his symptoms rapidly increased till his death. Dr. Reilly, an expert, has the same opinion. And Dr. Martland, the Essex County Medical Examiner, says, ‘It is only fair to assume it (the trauma) might (have aggravated the cancer) but I don't know how you are going to prove it.’ Obviously, this is but Dr. Martland's well-known outspoken way of saying that you cannot demonstrate the connection, but that he considers the connection exists as a matter of sound medical theory.
Opposed to this united medical front of attending physicians, both specialist and otherwise, as well as experts, respondent produces two experts only. The one of them who did not see the petitioner at all, and treats the matter wholly hypothetically, persistently adheres to the theory that no trauma could possibly affect a cancer. He also says, ‘I do not know of any school that has seriously advanced the argument that trauma is an accelerating factor in carcinoma.’ And this, despite the fact that in this very case, one of the leading physicians in the largest cancer institution in the country has just opined, that he at least is a member of such a school. The other specialist produced by respondent, who examined petitioner but once, says he is not one of those doctors that thinks that trauma never aggravates cancer. However, in the next breath he says that the trauma would cause hemorrhage or infection, and that the increased symptoms thereafter would be due, not to the aggravated cancer, but to such hemorrhage or infection. He thus apparently in part adopts Dr. Pool's theory as to the possible hemorrhage following the trauma here. And it would seem quite clear, if cancer cells were released in this hemorrhage from the original situs, they would more quickly spread the cancer wherever they went, and thereby aggravate the man's cancerous condition, than if they had continued pent up in the original cancerous capsule.
In short, both because of the appearance of the cancerous symptoms for the first time almost immediately after the December 1946 accident, and because of the reasonableness and relative weight of the medical opinion presented on petitioner's behalf, it would seem that petitioner has established by the greater weight of the evidence that the accident in question did aggravate Welch's cancerous condition, and hasten his total permanent disability.
But when it comes to the consideration of this same issue in the hearing on the death case, respondent insists that the testimony given by petitioner, then deceased, on deposition, including the sole direct evidence as to the...
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