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Lilly v. Todd

Decided: July 26, 1951.


Eastwood, Lloyd and Stanton. The opinion of the court was delivered by Eastwood, J.A.D.


This is a workmen's compensation case. Both the deputy director of the Workmen's Compensation Division, New Jersey Department of Labor, and the judge of the Monmouth County Court, on appeal, determined that the employee, Laurena Lilly, had suffered an accident arising out of and in the course of her employment; that the employer had due and timely notice thereof and that she suffered total permanent disability.

On this appeal, the employer contends: (1) "that the petitioner's present condition of hemiplegic state is not the result of the accident of December 17, 1948" and (2) "the refusal of the Deputy Director to grant a continuance to take the medical testimony of Dr. Pignataro precluded the respondent from meeting a medical theory advanced by the petitioner for the first time at the trial."

A summarization of the record reveals the following factual situation: Laurena Lilly, 58 years of age, employed in the home of the appellant as a domestic servant, while alone on December 17, 1948, slipped on a rug, falling to the floor on her back and striking her head, elbow and knee. She was unable to arise for approximately an hour and a half thereafter; when she finally got up, she went to her room and to bed. The following morning she went downstairs to get her breakfast and informed Mrs. Todd of the accident and that she was "hurting all over," whereupon Mrs. Todd directed her to go back to bed and called a Dr. Herman O. Wiley to treat her. She remained in bed thereafter until Monday, December 20, 1948, when she arose to go to the bathroom; following the completion of her toilet, as she attempted to

get up, she felt herself "go limp." It was ascertained that she suffered the left side hemiplegia and has been totally and permanently disabled ever since. At the trial, four medical doctors testified on behalf of the employee, viz.: Dr. Wiley, the treating physician, who first saw the petitioner on the day after the accident; Dr. James B. Spradley and Dr. Edward Dengrove, specialists in the field of head injuries and neurology, and Dr. George E. Meehan, specializing in the field of industrial medicine. All of whom testified, in their respective opinions, that the petitioner's total disability was caused by and is the direct and proximate result of the accident of December 17, 1948. The only medical witness testifying for the employer was Dr. Joseph G. Villapiano, who examined the employee on one occasion, May 4, 1949. Dr. Villapiano testified that it was his opinion that the petitioner's total disability was not causally related to the accident, stating:

"I think the hypertensive cardiovascular disease, the generalized arteriosclerosis, the hypertrophic osteoarthritis and the osteomyelitis of the extremity that was involved due to a previous accident, I thought that this patient was, from those generalized conditions and chronic systemic progressive conditions, was at least 50 per cent totally disabled prior to the alleged accident."

In addition, on behalf of the employer, the medical report of one Dr. Frank P. Pignataro, neurologist, was admitted into evidence without objection. Dr. Pignataro examined the employee on one occasion, January 8, 1949, his conclusion from such examination being:

"It is my feeling that this patient sustained a spontaneous Cerebral Thrombosis on a sclerotic basis in the right lenticulostriate area of the brain resulting in a left-sided hemiplegia. I saw no evidence for a subdural or epidural hematoma. The role of trauma in the etiology of this syndrome is questionable."

As is apparent in so many similar cases, this appeal is not predicated upon an absence of any competent evidence justifying the prior concordant determination. Link v. Eastern

Aircraft, &c., General Motors Corp. , 136 N.J.L. 540 (E. & A. 1948). The comment of Mr. Justice Heher in his concurring opinion in Temple v. Storch Trucking Co. , 3 N.J. 42 (1949) is applicable here:

"Ordinarily, the function of the appellate court in the review of a judgment in an action at law is the correction of errors of law, and not the trial of the issue de novo on the record and the evidence returned therewith. Rule 1:2-20 of this court, adopted September 15, 1948, in the exercise of the rule-making power granted by the Constitution of 1947, authorizes the court to make 'new or amended findings of fact' on a review of any cause involving issues of fact not determined by the verdict of a jury. This review is not the absolute right of the dissatisfied litigant. The power is purely permissive; and it would seem that its exercise is in the sound discretion of the court to serve the ends of essential justice in the individual case, usually where the findings of fact are palpably erroneous or new evidence is adduced under the court's original jurisdiction conferred by ...

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