On appeal from New Jersey Department of Labor and Industry, Workmen's Compensation Division.
[13 NJSuper Page 288] On May 21, 1947, petitioner, a blacksmith, met with an accident, injuring his back. While putting the finishing touches on a truck it squeezed him against the platform. He returned to work July 2, 1947. He had a formal hearing and the deputy director found that surgery was not necessary and that there should be an award of temporary disability plus permanent disability of ten per cent of total. He found a preexisting weakness of petitioner's neural arch, and X-rays showed evidence of arthritis which the deputy
director said was not surprising in view of the man's age and his work. He also found his leg affected by a cardio-renal system disorder. The deputy director found a low back injury of an orthopedic character. Petitioner had stated that he never had trouble with his back before the accident. The deputy director said: "There has been some indirect allusion to surgery. The greater weight of the credibility testified in this case preponderates against that."
The award was paid and the man continued to work and was working for the respondent at the time of the original hearing on June 28, 1948. His complaints at the time of the hearing were as follows: back bothers him, legs swell up, left leg folds and swells more than the right; legs sore, pain across back, headaches, nausea, leg and stomach hurt, could not lift anything.
Dr. Leonard Harris testified for petitioner at the original hearing and said the man had a defect in the neural arch at the fifth lumbar vertebrae known as a pre-spondylolisthesis. He estimated 60 per cent of total permanent disability. The involvement of the neural arch, he admitted, existed before the accident but was agitated by the accident. He did not know whether the man had disability before the accident. His diagnosis was a pre-spondylolisthesis aggravated by acute back sprain. He thought there would be no change in his condition. He found no disability in the leg but there was a small neurotic element.
Dr. P. F. Cardinale testified for the petitioner at the original hearing that the man had 20 per cent of total based on a contusion and abrasion of the lower abdominal wall and lower spine. The doctor never felt that surgery was required. He advised a neurological examination. The prognosis was good but there might be some neurological condition. The X-rays showed a productive arthritis between the first and second lumbar vertebrae, but there was nothing that he ascribed in the way of disability to the arthritic condition.
Dr. Andrew C. Ruoff, at the original hearing said the man had a 2 1/2 to 3 per cent total, and 5 per cent would be extremely
liberal. He said petitioner suffered from a cardiorenal vascular disease not related to the incident, but had no neurosis.
Dr. William B. Ein, for respondent, at the original hearing thought five per cent of total from an orthopedic standpoint would be proper. There were mild arthritic changes of the lower dorsal spine, a spina bifida, a definite involvement of the neural arch at the first sacral segment, but no relationship between the accident and the spondylolisthesis.
The petitioner's physical appearance at the time of the original hearing was described by Dr. Cardinale as being a heavy set man weighing 250 pounds, and being 6 feet 2 1/2 inches tall, with a prominent stomach.
On October 11, 1949, a petition was filed alleging that since the original award the petitioner's orthopedic disability had increased, and seeking additional compensation under the act and incidental expenses. This petition was heard by the deputy director and was dismissed on the ground that there had been previously entered a finding that surgical intervention was not reasonably indicated and that petitioner was thereby estopped by res adjudicata or by failure to object to the deputy director's original finding, and that at least the petitioner should have given notice to the ...