On appeal from a judgment of the Supreme Court, whose opinion is reported in 116 N.J.L. 70.
For the appellant, Felcone & Felcone (Michael Felcone, of counsel).
For the respondent, W. Holt Apgar.
The opinion of the court was delivered by
HEHER, J. This is a proceeding under the Workmen's Compensation act. Pamph. L. 1911, pp. 134, 763, as amended. The deputy commissioner found that the employe had suffered, by accident arising out of and in the course of his employment with the respondent, a fatal accidental "aggravation" of a conceded pre-existing inguinal hernia; and the Mercer Common Pleas affirmed the consequent judgment.
The evidence adduced by petitioner tended to prove that on August 15th, 1933, the deceased, while engaged with fellow-workmen in lifting railroad ties from the floor of a car over its side, three and a half feet high, to the right of way, sustained a strain which resulted in the strangulation of the contents of an existing hernial sac. The examining physicians found "a mass down on the right side, a hernia." The surgeon who performed an operation three days later found "a right inguinal strangulated hernia containing omentum and intestine." The intestine was "gangrenous and perforated;" and there were "a lot of adhesions between the hernial sac and the omentum and the hernial sac and the intestines." It was the undisputed medical opinion that the deceased had had a right inguinal hernia "for years;" there were unmistakable symptoms that it was of long standing. And the operating surgeon testified, and the conclusion was not seriously disputed, that the "hernia had been aggravated by the lifting of the ties," and that the "incarceration" and strangulation were the direct consequences.
The Supreme Court ruled as a matter of law that, for failure of proof of the elements of accidental hernia prescribed in paragraph 11 (x) of the Compensation act, as amended by chapter 279 of the laws of 1931 (Pamph. L., p. 704), the fatality was non-compensable. It was observed that a contrary construction would render the statute "largely meaningless,
because a hernia non-compensable at its occurrence, becomes compensable on its re-occurrence."
But this reasoning does not take into account the essential difference between the occurrence of a hernia, no matter how it originated, and the traumatic aggravation of that bodily infirmity. It rejects, as inapplicable by reason of the last cited statute, the well-established principle that disability and death, directly attributable to the aggravation of pre-existing disease by accident arising out of and in the course of the workman's employment, are compensable. In Winter v. Atkinson-Frizelle Co., 88 N.J.L. 401, this court sustained an award to the dependents of a workman whose death resulted from the effects of an unusual strain upon a diseased heart. The like ruling was made in Bernstein Furniture Co. v. Kelly, 114 N.J.L. 500. And in Graves v. Burns, Lane & Richardson, 10 N.J. Mis. R. 667; affirmed, 110 N.J.L. 607, this court held that tuberculosis ensuing from the activity of dormant bacteria induced by extraordinary strain is compensable. Such was also the holding of this court in Lundy v. George Brown & Co., 93 Id. 469. This principle was applied where a latent venereal disease and its resultants were rendered active by accident; it was held that there was an accidental injury in the legal sense. New York Live Poultry Trucking Co. v. Schwartz, 5 N.J. Mis. R. 178; affirmed, 104 N.J.L. 180. And in New York Switch and Crossing Co. v. Mullenbach, 92 Id. 254, where there was an aggravation of two herniae as the result of strain suffered in lifting a steel girder, and the workman died of post-operative pneumonia, this court held that his death ensued from an accident arising out of and in the course of the employment. See, also, Geisel v. Regina Co., 96 Id. 31; affirmed, 97 Id. 331.
We proceed to a consideration of the statute. We perceive in its general scheme and the language employed to express the legislative purpose recognition of the distinction between the hernia itself and the consequences of intervening trauma, direct and indirect, upon the affected part, and to deal only with the former. Proceeding upon the assumption, grounded in medico-surgical experience, that inguinal hernia is ordinarily a disease which "develops gradually," and is "very
rarely the result of an accident," it classifies as compensable a "real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall;" and it then goes on to provide that "all other cases will be considered as either congenital or [of] slow development and not compensable, being a disease rather than an accidental injury, unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employe was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within ...