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Welch v. County of Essex

Decided: August 5, 1949.

WILFRED J. WELCH, PETITIONER-APPELLANT,
v.
COUNTY OF ESSEX, RESPONDENT-APPELLEE. ANN WELCH, AS GENERAL ADMINISTRATRIX OF THE ESTATE OF WILFRED J. WELCH, AND INDIVIDUALLY AS THE MOTHER OF MARGARET WELCH, PETITIONER-APPELLANT, V. COUNTY OF ESSEX, RESPONDENT-APPELLEE



Hartshorne, J.c.c.

Hartshorne

[6 NJSuper Page 423] Welch, petitioner-appellant in this workmen's compensation appeal proceeding, a court attendant,

attached to the Essex County Courts, was admittedly totally and permanently incapacitated by a cancer of the chest. This soon spread throughout his body, causing his death April 14, 1948. He filed a petition for compensation for his primary total incapacity, alleging that the cancer was aggravated by a blow he received in his chest December 23, 1946, when, while he was in his occupation as driver of the prison van, he was hit in the chest and knocked down by the swinging open of the heavy front door of the van. Before the hearing on this petition, he had become bedridden and in extremis , his testimony as to the accident and his symptoms thereafter, upon the basis of which the medical testimony was given, having been taken on deposition at his home. The court order, permitting the taking of this testimony, provided that it was to be "taken for all purposes as though it had been taken in open court."

Shortly thereafter, he died from this cancer. Thereupon the requisite petition was filed by his wife, as administratrix of his estate and as mother of his daughter. Since the main issue in both causes -- the compensability of the cancerous condition, which first totally incapacitated him, and then killed him -- was the same on both petitions, the causes were consolidated for hearing. The basic issue at this hearing was, of course, the medical fact question, whether this cancerous condition was aggravated by this accident, which clearly arose "out of and in the course of his employment." To this accident the only eye witness was the deceased petitioner, who described the occurrence in detail on his deposition under lengthy cross-examination. The other witnesses saw him pick himself up off the ground, but did not see the blow that knocked him to the ground.

As to his symptoms, it is undisputed that the petitioner was a particularly robust individual, apparently in perfect health previous to the above accident. He had had an earlier blow to his chest February 8, 1945, when, while driving the Essex County prison van in a snowstorm, he was thrown against the steering wheel, which hit him in the center of his chest also. But from this relatively minor

injury, he recovered shortly, without any apparent continuing difficulty.

The above accident, in December, 1946, caused black and blue marks "all over my chest, and fractured a right lower rib." Within a week or two after this accident, he had a "terrific pain in my chest," which ran up from his left hip to his neck. He started spitting up blood within a couple of weeks after the accident. The physician in charge of the court attendants, Dr. Hanteman, treated him at first only for the fractured rib. However, when the symptoms, instead of abating, continued to increase, Dr. Martland, the Essex County Medical Examiner, was called in, and when a bronchoscopy was done, it was then for the first time suspected, in June, 1947, that Welch had a serious growth in his lung.

Thereupon, Welch was sent to the Memorial Hospital, in New York, where he was examined July 3, 1947, by Dr. Pool, one of the head men. Dr. Pool diagnosed the situation as critical, operated on Welch's left chest July 18th, and found a "mass in the immediate mid-portion of the left lung * * * diagnosis of lung cancer." The operation disclosed, however, that the cancer was too far advanced for removal, due to "widespread dissemination of the cancer throughout his body," and thereafter petitioner died from oatcell cancer April 14, 1948.

Such are the basic facts, lay and medical, on which this cause depends. The issue -- one of medical fact -- is whether this cancer, which admittedly pre-existed the accident of December, 1946, and which for the first time became known to Welch, and caused him increased suffering, immediately thereafter, was aggravated by this accident, or whether this suffering, which first became patent right after the accident, was entirely disconnected therefrom, and due solely to the normal progress of the pre-existing disease.

On this medical issue, for petitioner, appear not only both treating physicians, but as a consultant, Dr. Martland, the Essex County Medical Examiner, and Dr. Reilly, an expert. For respondent, appear two experts, one of whom had not

seen the patient at all, another of whom had examined him but once, the day his ...


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