On appeal from the Supreme Court.
For the appellant, Samuel Levinson.
For the respondent, Samuel P. Orlando.
The opinion of the court was delivered by
HEHER, J. The issue here is whether the dependents of Walter Dobrowolski, deceased, have sustained the burden of proving that his death was the proximate result of an injury by accident arising out of and in the course of his employment with appellant's decedent, Walter Glowacki. R.S. 34:15-7, et seq.
The Workmen's Compensation Bureau, after a formal hearing, dismissed the petition for failure of proof. The Camden Common Pleas, on appeal, reversed the judgment and remanded the cause to the Bureau "to make findings of facts not inconsistent with the views * * * expressed in the opinion" of the Pleas "after hearing the whole case." This is a novel procedure, for the opinion embodied contrary factual findings and reasoning, and the statute enjoins the Common Pleas Judge "to decide the merits of the controversy" on the record made in the Bureau. R.S. 34:15-66. There is a trial de novo in the Pleas upon the record. Sweigard v. Richards, 118 N.J.L. 394. The judge of that court may not remand the cause and direct the Bureau to find the facts as he perceives them. Yet there is a suggestion in the opinion of the Pleas that Deputy Commissioner Kraft erred in overruling testimony of a conversation between the deceased workman and his employer as to the circumstances attending his alleged injury. The judge conceived that this testimony was admissible, "not as proof of the accident itself, but to fix the
time and place of its happening." But the evidence was actually adduced, although later struck out, and therefore it was available for the consideration of the Pleas, if competent for the purpose.
Upon the remand, the Bureau again dismissed the petition. No further testimony was taken by either side. The evidence adverted to was again held to be incompetent; and it was found that the proofs failed to establish an industrial accident. Again, there was an appeal to the Pleas; and the judgment was reversed and compensation awarded to the decedent's dependents. Certiorari was granted to review this judgment; and there was an affirmance in the Supreme Court.
We entertain the view voiced by the Deputy Commissioner. The proofs are not in quality sufficient to bring the tendered hypothesis of a compensable accident within the realm of reasonable probability of truth.
Decedent died on December 6th, 1942, at the age of 66 years. The cause of death was lobar pneumonia, with associated acute fibrinous pleuritis. An autopsy confirmed this diagnosis; and it revealed also a transverse line fracture of the sternum, at the level of the fourth rib, with evidence of injury to the soft tissue behind the sternum but no indication of injury to the soft tissue over the sternum. The surgeon who performed the post-mortem, a witness called on behalf of the decedent's dependents, said that the fracture of the sternum was an indication of a previous trauma, but that the existence of a causal relation between the trauma and the later pneumonic condition would depend on the time interval. On the assumption that the trauma had occurred on November 12th or 13th, 1942, he was of the opinion that it was "a probable predisposing factor" in producing the fatal pneumonia. If, he said, force sufficient to fracture the sternum had been applied within one month of the onset of the pneumonia, "it might definitely produce areas of hemorrhage in the lung which * * * might be the seeding ground for bacteria to develop and cause lobar pneumonia." There was "no displacement of the transverse fracture;" it was "a line fracture." The petition for compensation charged the
injury was sustained on November 22d, 1942; by an amendment made in the course of the hearing in the Bureau, it was alleged to have occurred on the prior November 12th or 13th. Appellant conducted a bakery, and decedent was employed by him as a baker, and had been so employed for about twenty years. The allegation is that decedent was "struck in the chest" by a tin bucket used in pouring dough into a mixing machine. The bucket weighed thirty and thirty-five pounds when filled with flour; and decedent was required to ...