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Mitarotonoa v. Kidde

New Jersey Supreme Court


Decided: June 5, 1946.

NICK MITAROTONOA, PETITIONER-DEFENDANT,
v.
WALTER KIDDE & CO., INC., AND LIBERTY MUTUAL INSURANCE CO., RESPONDENTS-PROSECUTORS

On certiorari.

For the respondents-prosecutors, John W. Taylor.

For the petitioner-defendant, Sidney C. Swirsky & David Roskein and John A. Laird.

Before Justices Bodine, Perskie and Wachenfeld.

Bodine

[134 NJL Page 308]

The opinion of the court was delivered by

BODINE, J. This is a workmen's compensation case.

Petitioner was awarded compensation in the Bureau and this action was affirmed in the Court of Common Pleas. The case comes before us on an application for a writ of certiorari. It was denied by a single justice.

In the Bureau, the Deputy Commissioner found that an injury, by accident, was suffered and allowed benefits from August 22d, 1943, to July 31st, 1944, and permanent disability benefits equal to 100% disability of the right leg for 175 weeks and certain medical expenses and counsel fees.

Claimant on August 18th, 1943, was fifty-eight years of age and had been employed by the defendant company for four months. He was engaged in loading a trailer with shells. The shells weighed from thirty to thirty-five pounds and three or four hundred were placed on the trailer. On the day in question, the trailer tipped and many of the shells fell on petitioner's right leg from the knee down. The petitioner was helped to his feet and after he had rested in the fresh air for awhile he was taken to the factory nurse, who let him

[134 NJL Page 309]

sit down and gave him a glass of water. He went back to work; his leg hurt and bothered him. He went to work the next day, limping. He was then taken to the first aid. The next day, on instructions, he went to the doctor at first aid. The company doctor was not there but he was told to soak his foot or leg in epsom salts and come back the next day. He went to his own doctor and following his advice was admitted to the Presbyterian Hospital on the 23d of August, 1943. At the hospital, his right leg was amputated above his knee.

Petitioner's physician, Dr. Schreck, connected with the Newark City Hospital, the Newark Presbyterian Hospital and St. Michael's Hospital, has practiced in this state some sixteen years. Dr. Schreck had treated him previously for an infection of a bone of the right big toe. In April of 1943, the condition had cleared up. When he was consulted on the evening of August 20th, 1943, he diagnosed the petitioner's difficulty as the beginning of gangrene of the right foot. This was confirmed by a blood count and urinary analysis. Hence, he had him hospitalized. A minor operation was performed, later followed by the amputation referred to.

Another physician testified that the occurrence of the gangrene resulted from the trauma described, and that there was causal connection between the two.

After fully examining the proofs, we can only concur in the fact finding by the two concurring tribunals.

The writ of certiorari, under the rule laid down in Davies v. Onyx Oil and Resin Co., 130 N.J.L. 381, will be denied, with costs.

19460605


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