On certification to Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Justices Case and Oliphant. The opinion of the court was delivered by Wachenfeld, J.
The respondent was employed by the Ford Motor Company and suffered an injury while lifting a two hundred pound steel beam on December 6, 1946.
He filed a petition for temporary disability and at a hearing in April, 1947, the Workmen's Compensation Bureau found he had been temporarily disabled from December 7, 1946, to April 13, 1947, inclusive, and awarded benefits for this period. That award has been paid and is not in dispute.
The Bureau also determined that the respondent had suffered a permanent disability of five per cent and benefits therefor were awarded, which likewise have been paid and are not in dispute.
A further claim for permanent and total disability was made and hearings were held thereon during February, March and April, 1948. A Determination of Facts and Rule for Judgment, dated June 15, 1948, decreed that the respondent had suffered temporary disability from December 6, 1946, to February 28, 1948, and also total permanent disability. An award of temporary and permanent disability benefits was accordingly made.
The course then followed a common pattern, where the County Court disagreed in its findings and conclusions with the Bureau, and on appeal the Appellate Division was confronted with the necessity of re-evaluating the testimony which had brought about the conflicting results below. The decision of the Appellate Division under these circumstances, if not decisive here, is at least most persuasive.
The Bergen County Court determined the respondent had failed to establish that his present disability was caused by or was due to an aggravation resulting from the injury sustained by him on December 6, 1946, and his petition was accordingly dismissed. The matter was brought on before the Appellate Division and argued orally there on February 6, 1950. The judgment below was reversed, of which more later.
The appellant thereupon petitioned this court for certification
on the ground that the Superior Court, Appellate Division, in using the photostatic copy of the hospital record had so far departed from the accepted and legal course of judicial proceedings as to call for an exercise of this court's supervision. Certification was granted and in due course the case was presented and argued.
Three reasons are submitted for reversal. First it is alleged there was a failure to prove by the preponderance of evidence that the accident could have caused or did cause the present disability by precipitating or aggravating a pre-existing condition, and it is alleged there was likewise a failure properly to prove that the respondent was afflicted with multiple sclerosis prior to the date of the accident or suffering from it at the time of the hearing.
The physical condition complained of was multiple sclerosis, a degeneration of the nervous system. The medical testimony was not wholly in accord as to how long after an injury the symptoms of multiple sclerosis might appear. For several months no neurological examination of the respondent was ordered since his condition was, in the opinion of the doctor who was then treating him, an orthopedic dislocation not involving the nervous system. It was not ...