On appeal from the Supreme Court, whose opinion is reported in 122 N.J.L. 383.
For the prosecutor-appellant, Walscheid & Rosenkranz (J. Emil Walscheid, of counsel).
For the respondent-appellee, John E. Toolan.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of the Supreme Court in a workmen's compensation case. That judgment affirmed the determination and judgment of the Middlesex County Court of Common Pleas and of the deputy commissioner who heard the case in the Compensation Bureau. It is not necessary to set out the facts in detail here. A comprehensive exposition of the facts and circumstances appears in the opinion of Mr. Justice Perskie (Cf. 122 N.J.L. 383).
The appellant argues this appeal under three headings, the substance of which is (1) the award was "improper" because of (a) failure to give employer the statutory notice of occurrence of the injury; (b) lack of actual knowledge in the
employer of the occurrence of the injury within ninety days thereafter. R.S. 34:15-17.
(2) The employer was prejudiced by employe's failure to give notice. (We shall not consider the argument made in support of this ground for reversal because this point was not included among those set down in the "reasons" for reversal filed in the Supreme Court. Since the appellant did not argue below that it was "prejudiced" by want of notice, that point may not now be entertained for the first time.)
(3) There is no evidence to support the finding that employer had actual knowledge of the occurrence of the injury.
It is conceded that the employe, Levins, did not give the statutory notice of accident or of the occurrence of injury to the employer. The disputed issue is therefore whether the employer had actual knowledge of the injury within the contemplation of the statute, supra, and within the ultimate of the time permitted by the same statute for obtaining such knowledge, i.e., within ninety days after the "occurrence of the injury."
From the testimony, it is clear that on July 29th, 1935, Levins, while performing his appointed task for the appellant, struck his head on a beam in the plant. Apparently he thought nothing whatever about this incident. Immediately thereafter he had the sensation that there was "something in his left eye;" he wiped it a few times, then went to the "first aid" room on the premises, where the appellant's doctor is in charge to take care of just such matters. The testimony then is to the effect that a "foreign body" was removed from Levins' left eye. The examination of the eye was done with the aid of a "magnifying glass and a strong light." Thereafter, on September 23d, 1935, it was discovered by an eye specialist, to whom petitioner went, that the retina of each eye had become detached. The result is that petitioner is practically blind. Did the employer, in the light of these circumstances, have "actual knowledge of the occurrence of the injury?"
Now the Supreme Court found the facts. Each fact so found is permanently established here if any legitimate evidence [124 NJL Page 226] sustains the conclusion. The Supreme Court said, "What the employe did in this case was to apprise the employer through its physician on the day of the accident that he had sustained an injury. Both the deputy commissioner and the Court of Common Pleas so found. We, too, so find." It is argued that this is an illogical and unjustifiable conclusion -- that the final disability was detached retina; that no actual knowledge of the occurrence of that precise injury was had by the employer; therefore no liability resulted. We think there is no real merit in this contention. The appellant, in its treatment of this proposition, argues that there were two happenings, namely, that Levins struck his head on a beam, which incident he failed to report to the doctor, and (2) that he got a cinder in his left eye, which incident he did report. This premise to the appellant's conclusion is not a reasonable appraisal of the facts. It was not suggested in the testimony of any witness but that the effect of Levins' striking his head on the beam was an eye discomfiture which he thought was a cinder in the eye. Neither untruthfulness nor fraud is imputed to the petitioner. He told Dr. Kovarsky, the plant doctor, just what was troubling him, namely, the eye condition; he didn't associate it with the slight "bump" on the head that he had within the hour; the doctor looked into his eye through his glass, aided by a strong light; the physician again saw him some days later and, upon inquiring about the eye, was told it was "about the same." Discomfiture from a speck in one's eye does not last for several days and ordinary caution demanded that the doctor examine the eye again on learning that it had not improved, which was not done. If further examination had been made the extent of the injury would have been discovered by the ...