For the petitioner-respondent, Julius D. Canter (William E. Sewell, of counsel).
For the respondent-prosecutor, Kalisch & Kalisch (Isidor Kalisch, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. This writ of certiorari brings up an affirmance by the Hudson County Court of Common Pleas of an award in the Workmen's Compensation Bureau in which the respondent was determined to be totally and permanently disabled and awarded compensation and fees accordingly.
On August 28th, 1943, respondent's regularly assigned employment with the prosecutor required him to pull a rack, mounted on rollers and containing shelves carrying boxes of macaroni, to a separating machine. While so engaged, one of the rollers struck a floor cleat, causing the rack and its burden of some 750 pounds to fall on the petitioner, striking his chest and causing unconsciousness for a few minutes. After attempting to work for a few hours respondent went home and the following day was unable to work.
After examination by the prosecutor's doctor respondent was taken to a hospital. Through X-rays it was discovered the patient had rib fractures and was suffering from an active condition of tuberculosis of the lungs. He was given seven weeks' bed rest for the latter condition and then discharged from the hospital. He remained at home and away from his work for seven more weeks, during which time he reported to the prosecutor's doctor about three times a week for diathermy treatments on his back.
On January 12th, 1944, upon discovery that the tuberculosis had worsened, respondent was directed by the prosecutor to go to the Hudson County Tuberculosis Hospital. He remained there until July 26th, when he left the institution against the advice of the attending physician. During the period at the tuberculosis hospital, through bed rest and medication, respondent's condition improved. He stayed at home for about two months until September 21st, when he was readmitted to the tuberculosis hospital with a severe case of pulmonary tuberculosis and has been there ever since.
There is evidence that in July, 1943, respondent suffered a fall at home which may have caused certain rib fractures but not all of the fractures present on the day of the second accident. Prosecutor also adduced testimony showing that during the period after July 26th, 1944, respondent was seen over a period of two weeks playing cards and drinking beer in a local cafe at hours from ten, twelve and sometimes two o'clock in the morning. Expert medical witnesses agreed that absolute rest was essential to respondent's recovery, whether at home or in the hospital, but that the taking of alcoholic beverages in itself would not be harmful.
It is admitted the instant accident arose out of and in the course of respondent's employment, but it is contended (1) the respondent was not at the time of the accident a 100 per cent. working unit since he already had a dormant tubercular affliction and had sustained prior accidents unconnected with his employment, and (2) the petitioner's present disabling illness is not attributable at all, or at least not entirely, to the industrial accident but to the conduct of respondent subsequent to his voluntary departure from the tuberculosis hospital on July 26th, 1944.
Expert witnesses, including the attending physician, testified to the respondent's present completely disabled condition. These witnesses also said that the accident of August 28th, 1943, reactivated a dormant tubercular condition and was the sole cause thereof, and had respondent remained in the tuberculosis hospital after July 26th, 1944, ...