[13 NJSuper Page 296] The petitioner appeals from a determination as amended by subsequent order entered by the Deputy Director of the Workmen's Compensation Division which granted the respondent's motion to dismiss the petition, made at the close of the petitioner's case, on the ground that the evidence does not show petitioner sustained an accident arising out of and in the course of her employment within the meaning of the Workmen's Compensation
Act. The deputy director found "that the petitioner has not proven that she sustained an accident arising out of and in the course of her employment with the respondent but rather the proof was that her condition was merely an occupational one."
The testimony in the case up to this point is briefly as follows:
The petitioner testified that her regular work was that of stem operator which required mainly using her fingers; that on the night of November 21, 1949 she was assigned to different work, inspection of lamps, which involved also the "making" of boxes requiring that a cardboard box be picked up, folded and placed on the floor again every three minutes; that the job was so fast that she could not do it; that this work commenced at 3:30 in the afternoon of this day; that about 9:00 P.M. during this bending operation she experienced pain in the lower part of her back and "could not straighten up"; that she continued working for ten or fifteen minutes and then asked her foreman for a helper which he assigned to her about a half-hour later; that she told him that her arm, which he knew she had injured ten months before, was bothering her because she did not want to complain about her back; that the balance of the evening she was no longer required to perform the bending operation; that the following day and for the rest of the week she worked at her regular sitting job as stem operator; that during this week she continued to experience pain and treated herself; that the following Monday, November 28, she was again put on inspection work and worked all day without a helper although she felt pain; that she did not ask for a helper because she thought the pain would go away; that on Tuesday, November 29 she had pain in her back and legs and could not report for work; that on Wednesday, November 30, she called Dr. Charles Flax who saw her that day and on numerous occasions thereafter; that he gave her a prescription, strapped her back, gave diathermy treatments and prescribed a back supporter.
Dr. Flax testified that he first saw the petitioner at her home on November 30, 1949 and found her complaining of pain in the lower back region which at that time he diagnosed as a lower back sprain; that he treated her on numerous occasions through April 1950 giving diathermy treatments and restrapping her back.
Dr. Max Kummel testified that he examined the petitioner on September 11, 1950 and that his diagnosis was a right sacroiliac sprain. In reply to a hypothetical question encompassing in substance the above facts, Dr. Kummel testified that in his opinion the condition and the disability of seven and a half per cent of total which he found in his examination is causally related to the incident of November 21, 1949.
The respondent stipulated that it had actual knowledge of the occurrence of an alleged incident within the time required by the Workmen's Compensation Act.
This court does not agree with the tribunal below that the petitioner's proofs show that her condition was merely occupational.
In Liondale Bleach Works v. Riker , 85 N.J.L. 426 (Sup. Ct. 1914) the court established the time-honored test "that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident." The court went on to say that "There may indeed be compensation awarded for the resulting conditions where you can once put your finger on the accident from which they result."
In Bollinger v. Wagaraw Building Supply Co. , 122 N.J.L. 512 (E. & A. 1939), the court defined an occupational disease as one "that from common experience is visited upon persons engaged in a particular occupation, in the usual course of events. It is one that is incidental to the employment itself, e.g. , painters become affected with lead colic or lead poisoning; telephone operators develop ear trouble; phosphorous poisoning is common to those who work in the ...