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Twibill v. Federal Shipbuilding and Dry Dock Co.

Decided: January 15, 1948.


On writ of certiorari.

For the petitioner-defendant, John A. Laird and David Roskein.

For the respondent-prosecutor, Stryker, Tams & Horner (William L. Dill, Jr.).

Before Case, Chief Justice, and Justice Burling.


The opinion of the court was delivered by

CASE, CHIEF JUSTICE. This is a workman's compensation case. The Bureau and, on appeal, the Essex Common Pleas allowed a one hundred per cent. compensable disability due to a general paresis marking a development of syphilis of the brain. The syphilis was a pre-existing condition, but the paresis was said to be sequentially related to an accident arising out of and in the course of the employment in that the accident was found to have caused a flare-up of theretofore existing but quiescent conditions. The dispute is largely one of fact as to the phases of the accident and whether they awakened a dormant disease.

On June 18th, 1943, claimant, in the course of his work, was on a small pontoon about six or eight inches above the surface of the waters of Newark Bay alongside a ship which was under construction. He fell into the water and received physical injuries the extent and effect of which are in controversy. It is conceded that the incident constituted an accident which arose out of and in the course of the employment. The record of the hospital department of the employing company, made by the "first-aid" attendant who responded to the call, contains this entry:

"Complaints and Findings -- (1) Deep lac about 1st & 2nd fingers Lt hand. (2) Abrasions about Lt hand & Elbow. (3) Cont. & abrasions about both thighs. (4) Cont & abrasion on Lt Side of chest. (5) Submersion."

The injury to the hand was quite severe and received hospitalization at St. Francis Hospital covering a period of three days, during which there was a suturing of the laceration and a reduction of dislocation done under an anesthetic. The claimant returned to work on June 22d, 1943, and continued to work until the middle of July. On August 31st, 1943, he was admitted to the Veterans' Hospital at Lyons, New Jersey, suffering from paresis and was still a patient there, unable to testify, at the time of the hearing in the Bureau.

The record subsequent to the observation made at the plant hospital appears to be silent about the abrasions at the elbow, the thighs and the chest, and we conclude that those injuries were not serious. The case turns largely upon the causal

effect of the hand injury and of the submersion and particularly upon the actuality and the effect of an alleged injury at the back of the head. We are not impressed by the contention that falling, in mid-June, into the water from a level six or eight inches above the surface thereof and the subsequent wetting substantially affected the man's underlying syphilitic disease. We find no proof of a condition of shock when the claimant was found, injured, on the pontoon or while he was briefly at the plant hospital or while he was in St. Francis Hospital. He was carried by basket from the pontoon to the dock, but that was because he was unable, with his injured hand, to climb the ladder.

Much is made of the alleged injury to the back of the head, said to have been evidenced by a lump or discoloration. A friend testified that he met the claimant on the street about the fourth of July, 1943, and that he saw and felt a lump about the size of an egg on the back of the latter's head. The claimant's wife testified that on the day after her husband's return from the hospital she was combing his hair and for the first time noticed a red mark on the back of his head, that there was not and never had been a lump, that the friend must have been mistaken and that the discoloration was still there at the time of the giving of the testimony, which was well over a year after the accident. Dr. Dolsky, who was one of claimant's three medical witnesses, testified that on June 24th, 1943, he found a discolored area about the size of a half dollar, not swollen and not painful to the touch, that he did not know when the mark first appeared or whether it came from the injury and that if the condition had maintained until the time testified by Mrs. Twibill it would not be typical of a contusion on the head. Dr. Dolsky also testified that if the claimant did not receive a bump on the head when he fell at the shipyard, it was the opinion of the witness that the subsequent psychosis did not result from ...

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