For the prosecutor, Hiram Elfenbein.
For the respondent, Kalisch & Kalisch (Isidor Kalisch, of counsel).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Prosecutor, Joseph Ligenza, brings certiorari to review the judgment of the Hudson County Court of Common Pleas reducing an award of the Workmen's Compensation Bureau in his favor from 100% permanent disability to 25% partial permanent disability. Prosecutor, in his claim petition filed on June 1st, 1945, alleged that he had been injured as the result of an accident while engaged as a cupola attendant at respondent's foundry on December 21st, 1944. The original claim petition specified that prosecutor had suffered permanent injury to his back and legs and other parts of his body. An amended claim petition was filed on November 26th, 1945, wherein prosecutor alleged that he had suffered permanent injury to his "back, buttocks, legs, together with Parkinson's syndrome (precipitated, aggravated by trauma) neurosis."
The Bureau determined that prosecutor had suffered an accident arising out of and in the course of his employment with the respondent; that he had been paid temporary compensation
for a period of 21 3/7 weeks in the amount of $428.57; and that prosecutor's permanent disability was 100% of permanent total. Judgment was accordingly entered for total permanent disability for a period of 400 weeks, compensation at $20 per week or a total of $8,000. On appeal from the determination of the Bureau to the Hudson County Court of Common Pleas, that court found, as a matter of fact, that the prosecutor had sustained an injury to his back to the extent of 25% of total permanent disability and the award of the Bureau was accordingly reduced.
Factually, it appears that the prosecutor was sixty-five years of age and had been employed by the respondent as a cupola attendant at its foundry for a period of approximately thirty-two years prior to the accident on December 21st, 1944. His duties included keeping the cupola charged with coke during the smelting process, chipping slag, tapping the charge with a heavy iron bar at the time of pouring the molten metal from the oven, lifting an iron door, hinged at the bottom of the cupola, weighing about 500 or 600 pounds, with the aid of a co-worker and other laborious work. Prosecutor testified that he and his co-worker would lower themselves to the floor by bending their knees gradually and then with their backs would lift the hinged door with a lifting motion, straightening themselves upward by straightening out their knees. On the day of the alleged accident, prosecutor and his co-worker were so engaged in raising the door when he felt something snap in his back and he dropped to the ground. He was taken to a hospital in an ambulance and was treated there by Dr. Mears, who examined him and gave him some pills. He stayed at the hospital a day and a half and then went home for Christmas. At his home, he called another physician, Dr. Piskorski, who gave him some medicine and applied some plaster to his back. At the hospital, the following findings were disclosed:
"Conclusions: The findings of most note are the signs of moderate dilatation in the descending portion of the thoracic aorta and the accentuated pulmonary markings on both sides that are believed to be related to chronic bronchial and pulmonary infection or irritation.
"Lumbar spine: There is a spondylitis of the marginal type involving the lumbar vertebra. Evidence of bone ...