For the prosecutor Manufacturers Casualty Insurance Co., Foley & Francis (Gerald T. Foley, of counsel).
For the respondent Jamestown Mutual Insurance Co., Frank P. Zimmer.
For the petitioner-respondent, David Roskein (Harry Cohn, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The question to be resolved here is which of the two defendant insurance carriers is liable for the compensation concededly payable to the petitioner, Silberman, under R.S. 34:15-7, et seq., for disability ensuing from injuries sustained while pursuing his employment with defendant National Egg & Product Co.
The Compensation Bureau found that petitioner is permanently disabled to the extent of 35% of total, and that 10%
of this is attributable to a back sprain he suffered on August 13th, 1940, while lifting a heavy object, and 25% to an aggravation of the injury by a further sprain sustained in the same manner on the following September 9th. The Manufacturers Casualty Insurance Company was the insurance carrier when the original accident occurred, and the Jamestown Mutual Insurance Company was the carrier at the time of the alleged second mishap. The Essex Court of Common Pleas concluded that "the second episode was not a separate accident, but a recurrence of the condition produced by the first," and that "the accident of August 13th, 1940, was the inducing cause of the disability from which * * * the petitioner suffers," and therefore the insurance carrier at the time of the original injury was solely responsible for the compensation payable to the employee. We do not concur in this finding.
While there is medical opinion that the entire disability is referable to it, it is not fairly disputable that there was a second industrial mishap which substantially aggravated the consequences of the first injury; and this, in itself, constitutes an injury by accident within the statutory sense. It is also reasonably inferable that the area of the second injury was much more extensive than that of the first.
The employee testified as follows respecting the earlier occurrence: "I was taking a case of ham down from a pile and putting it on a flat truck, and as I bent up I felt a snap in the right lower back, and couldn't straighten up." Dr. Lowenstein "taped" his back about two hours later, and treated him five or six times until August 26th or 27th. Meanwhile, he continued his work, with the aid of a helper on "heavy days" during the first two weeks, although he "had pain in the lower right back practically at all times." He explained that he discontinued his visits to the physician because he "had no time to stop there;" but it is clear that there was a substantial improvement in his physical condition. As to the second mishap, he said: "After that, ...