For the prosecutor, John W. Taylor.
For the defendant, William F. Nies and William L. Vieser.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
DONGES, J. This writ brings up a determination of the Hudson County Court of Common Pleas reversing a finding
of the Workmen's Compensation Bureau and holding that the petitioner employee was suffering from forty-five per cent. of total permanent disability as the result of an accidental injury admittedly sustained in the course of his employment by the prosecutor.
On July 16th, 1941, while employed by the prosecutor as a dockbuilder the defendant fell overboard and struck his head against an iron bulkhead. He was in the hospital for three days, returned to work and was again hospitalized for two weeks. He did not work until March, 1942, when he commenced work for another employer. He was paid temporary disability compensation for the July 16th, 1941, injury and was allowed in a settlement compromise ten per cent. of total permanent disability arising from that accident.
In 1939 defendant, while in the employ of another at similar work, had suffered a fall in which he also struck and sustained injuries to the head. As a result of that accident he was awarded compensation amounting to five per cent. of total permanent disability. In August, 1942, while working for a third employer he sustained an injury to his hand for which an award of compensation has been made. He has not worked since the 1942 accident, but there is no determination that he is presently totally disabled or unable to work.
The determination under review finds that the defendant is fifty per cent. totally and permanently disabled as the result of the first two accidents and that forty-five per cent. of the disability is attributable to the second accident either in direct effects or in aggravation of the condition left by the first accident. The effects of the third accident and injury to the hand then incurred are disregarded in arriving at this result. The contention of the employer is that the proofs do not support the judgment of the Common Pleas Court but rather support the holding of the Bureau to the effect that the evidence was insufficient and any award would have to be based upon conjecture. The resulting judgment awards the employee an additional thirty-five per cent. of total disability, the fifty per cent. found to exist less fifteen per cent. already paid, five per cent. as the result of the first accident and ten per cent. from the second.
To resolve the question presented recourse must be had to the medical testimony. Dr. Paul Keller had examined the defendant after his first accident and testified at that time that the disability was from five to ten per cent. of total and that five per cent. was a fair compromise. He again examined defendant for the purpose of testifying at the hearing in the present proceeding and found him complaining of headaches and dizziness, blurring of the vision, and chills and sweats. His objective findings were that defendant "shows a rather apathetic expression." He "has occasional head tremors" and "generalized tremors." He also found that "at times his head shakes. He has a slight swaying suggestive of a Romberg." He further testified that "There is no doubt at the present time he is suffering from a marked degree of either some organic pathology of the brain plus a marked psychoneurosis or a ...