For the respondent-prosecutor, Schneider & Schneider (Walter X. Trumbull, of counsel).
For the petitioner-defendant, Winne & Banta (John A. Christie, of counsel).
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. This an appeal from an award of the Workmen's Compensation Bureau in favor of the employee. There was no appeal to the Court of Common Pleas because the alleged accident happened outside of New Jersey.
On April 23d, 1943, Alfred Thackston was spreading a heavy tar in a parking area which was covered by a wire screen for the purpose of camouflage. The tar was applied at high temperature and gave off a considerable quantity of smoke and fumes. At the end of the working day, Thackston's eyes smarted and burned. Five days later he went to
a doctor recommended by his employer, who treated him for about ten days when, because his condition did not improve, the employer sent him to a Dr. Berke. Dr. Berke's testimony was that Thackston had conjunctivitis of the right eye and could distinguish hand movements at a distance of six inches. He attributed the impaired vision "to an inflammation on the inside of the eye" known as choroiditis and uveitis. X-rays were taken to discover whether any foreign body was imbedded in the eye but none was discovered. Blood tests, a urinalysis and other tests were given, all of which were negative. However, one tooth was found with a root abscess. The tooth was removed and a culture of the pus disclosed a streptococcus viridans infection. Dr. Berke said, "all our examinations were normal, and we failed to find any cause for the inflammation in his eye." In answer to hypothetical questions, his answers were varied. He said in one instance that he could not say positively that the conjunctivitis was the cause but that it could be the cause. In another instance he said that he believed the creosote fumes precipitated the inflammation of the eye which resulted in blindness. Enlarging upon the last statement he said: "We made all these tests which I mentioned and which are known to produce a disease such as he had. We found all our tests were normal and that he did not have any of the usual diseases to which this condition is attributable."
Dr. Dias, called on behalf of the employer, agreed that the cause of the blindness was uveitis and was firmly of the opinion that the inflammation caused by the creosote fumes from the spreading of tar at high temperature bore no relation to the blindness. He also went further and explained that one of the recognized forms of treatment was to induce a conjunctivitis in the hope that the increased blood supply caused thereby would cure the condition. His testimony was to the effect that a uveitis is always due to a constitutional cause. When asked what relationship the streptococcus viridans would have, he said that "the absorption of pus over a prolonged period of time would produce a posterior uveitis."
In awarding compensation, the deputy commissioner seems to have come to a decision without regard to the medical testimony
for he said: "The main controversy in this matter as presented to me seems to be medical, and I suppose if we handled this case from the medical angle we never could get a decision. * * * we don't try compensation cases on medical thories, but on legal ones, because it is the ...