For the prosecutor, Nicholas Martini.
For the defendant, Edward O. West.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. While in the employ of defendant, prosecutor suffered a left indirect inguinal hernia; and the primary question for decision is whether it was the result of unwonted strain arising out of and in the course of the employment, and therefore classable as accidental and compensable within the intendment of paragraph 11 (x) of the Workmen's Compensation act of 1911, as amended by chapter 279 of the laws of 1931. Pamph. L. 1911, pp. 134, 763; Pamph. L. 1931, p. 704.
The deputy commissioner, answering the inquiry in the affirmative, made an award of compensation. Upon appeal, the Passaic Common Pleas found that prosecutor "did not sustain an inguinal hernia or traumatic hernia out of and in the course of his employment," and reversed the judgment. The proceedings were brought into this court by certiorari.
There is a preliminary procedural question to be determined. The petition for compensation alleged that prosecutor "sustained traumatic hernia lifting a heavy beam," necessitating a surgical operation; and defendant maintains that there was, to its substantial prejudice, a material variance between the allegation and the proofs, in that the statutory provision adverted to makes compensable two classes of herniae, i.e., "traumatic hernia" and "non-traumatic inguinal hernia," and that the petition alleged the former while the evidence adduced was directed to the establishment of the latter.
The point is devoid of substance. The statute classifies herniae as to cause. Only those resulting from trauma are compensable. It separates traumatic herniae into two divisions, i.e., (a) those produced by the external application of force "directly to the abdominal wall," and (b) those ensuing from the indirect application of force generating acute intra-abdominal tension and strain. The adjective "traumatic" is
to be given its broad general signification. "Trauma" in its generic sense imports "an injury or wound, or the resulting condition" (Webster's New International Dictionary, 2d ed.) -- the emanation of an accident, as contradistinguished to disease. Furferi v. Pennsylvania Railroad Co., 117 N.J.L. 508.
The proofs were therefore within the range of the petition. The employer was, by the quoted allegation, fairly put upon notice of claim that the hernia was the consequence of intraabdominal force flowing from extraordinary physical effort and over-exertion. It was not misled to its prejudice. There was no surprise -- no variance in matter of substance. See Westville Land Co. v. Handle, 112 N.J.L. 447, 455. The niceties of technical pleading have no place in the judicial enforcement of rights created by the compensation act. The petitioning employe informed his employer of the nature of the claimed compensable accident, and its consequences; and, in this respect, the requirements of the statute, procedural and otherwise, were satisfied.
Thus we are brought to a consideration of the basic question. The proofs satisfy us that the hernia so suffered by prosecutor resulted from an accident arising out of and in the course of his employment. The employer frankly concedes that the employe, by his own testimony, has made out a "prima facie" case of a compensable inguinal hernia resulting from "sudden effort or severe strain." But the insistence is that the weight of the evidence is to the contrary. It is said that, while his own testimony shows the existence of the five statutory prerequisites, his "story of an ...