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Kwaitkowski v. McCabe''s Express and Trucking Inc.

Decided: January 7, 1943.

THEODORE KWAITKOWSKI, PETITIONER-DEFENDANT,
v.
MCCABE'S EXPRESS AND TRUCKING, INC., A CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT-PROSECUTOR



On writ of certiorari.

For the petitioner-defendant, Irving Reiken and Louis P. Brenner.

For the respondent-prosecutor, William J. Weliky.

Before Justices Case, Donges and Colie.

Case

The opinion of the court was delivered by

CASE, J. The writ of certiorari brings up the record of an award by the Compensation Bureau in favor of Theodore Kwaitkowski, employee, against McCabe's Express and Trucking, Inc., employer, under the Workmen's Compensation Act. The employer is a New Jersey corporation. Claimant is a resident of this state. The contract of employment was made here, and the accident sued upon occurred in Brooklyn,

New York; wherefore there was no appeal to the Court of Common Pleas.

The petition alleged a hernia but was amended at the hearing to allege an "abdominal strain" as the injury. The determination found that the claimant suffered a severe strain of the abdominal muscles and that as a result he had a temporary disability of one week and a partial permanent disability amounting to two per centum of total. The question under review is whether the Bureau was correct in adjudicating any permanent disability.

There were three witnesses at the hearing; the claimant and his physician in his behalf and an examining physician brought in by the employer.

The claimant, on November 4th, 1940, was in the act of lowering a barrel from his truck when he experienced a sharp pain in the abdomen. He drove the truck back to his place of employment and at the close of the day went home. That night, at eleven-thirty, on the call of claimant's father, an ambulance came from the Jersey City Hospital but claimant was not taken nor was he treated or given advice beyond a suggestion from the ambulance doctor that he call at the hospital the following morning -- a suggestion that was not followed. On November 5th claimant visited Dr. Mueller who was his witness at the trial. He made further visits upon Dr. Mueller on November 11th, 1940, November 21st, 1940, and, finally, about a month before the hearing which was held on March 17th, 1942; four visits in all, three of which were within a period of slightly more than two weeks following the injury, and one after a lapse of one year and four months.

The testimony given by the claimant is exceedingly meager in its bearing upon the fact, or extent, of permanent disability. He said: "I still get pains," "I am not working," "I didn't go back to work at all," "I get them [viz., pains] quite often now off and on and every time I start seeing Dr. Mueller he generally gives me medicine to take and he gives me an examination," "I wear a belt." That is all of it.

Dr. Mueller testified that he examined the claimant on November 5th, 1940, and received an ...


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