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Zaklukiewicz v. Western Electric Co.

Decided: November 7, 1951.

EDWARD ZAKLUKIEWICZ, PETITIONER-RESPONDENT, AND CROSS-APPELLANT,
v.
WESTERN ELECTRIC COMPANY, RESPONDENT-APPELLANT, AND CROSS-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.

Brennan

The Hudson County Court reversed the dismissal in the Workmen's Compensation Division of petitioner's claim petition and entered judgment for him upon an award of 30 per cent partial permanent disability. The question for decision upon respondent's appeal is whether the county court properly found that petitioner had sustained the burden of establishing a causal connection between the accident and his migratory thrombophlebitis.

The claim petition was filed October 10, 1949. Petitioner sought to establish that the disease was started by an accident which occurred over 9 1/2 years before on June 24, 1940, when he struck his left knee against an iron support on his work bench, fainted and fell off his chair. He was taken to the plant hospital and given first aid by Dr. Lowell, a plant

physician. Dr. Lowell caused a first aid record to be made at the time which states that petitioner had bruised his left knee and also had "a brush burn on anterior surface middle tibia (third of left leg) swelling of left upper lip, no laceration." The next morning petitioner reported to Dr. Lowell. The note of that examination recites, "brush burn of left leg healed -- no dressing necessary. Condition of left knee better, condition of employee is better, no treatment necessary."

Petitioner saw Dr. Lowell again on August 13, 1940, seven weeks after the accident. Meanwhile he had been absent from the plant, for illness from June 28 to July 8 and again from July 10 to July 20, and on vacation after July 30. On August 13 a swelling and redness was present in his lower left leg. Dr. Lowell diagnosed the condition as "condition seems to be a phlebitis," but was of the opinion, and reported, that it was not causally connected with the accident because, he testified, the symptoms had not appeared within the time when they could have been expected if the accident had been the producing cause of the disease. His opinion was that the symptoms would have been manifest in less than a week, that generally they appear within 24 hours. Thereafter respondent treated petitioner's case as a sickness rather than an accident case and over the ensuing ten-year period supplied medical treatment and hospitalization as privileges to which petitioner is entitled under its sickness benefit plan. In addition to treatments by plant doctors respondent supplied surgery at a Newark hospital in March, 1941, when a ligation (that is, a tying off) of the saphenous vein in the left leg was performed, and hospitalization at New York Post Graduate Hospital in 1942, 1945 and 1950 for diagnoses and treatment under the supervision of Dr. Bobb, a specialist in peripheral vascular diseases, who also treated him many other times as an outpatient. Lesions appeared in his right leg after the ligation was performed, and in after years variously in his left forearm, again in his left leg, in his fingers and in one heel. All the doctors who testified were in accord that his disease was migratory thrombophlebitis.

The disease is a rare and unusual one. It is a specific form of venous pathology markedly different in its characteristics from the more common disease of the veins called thrombophlebitis. The latter is a process of inflammation or irritation of the vein in which all coats of the vein are involved, but particularly the inner lining, or intima. With the involvement of the intima, thrombosis or clotting takes place within the vein, which tends to block the blood flow to the vein, destroy valves and alter the entire structure of the vein. Migratory thrombophlebitis, on the other hand, is an involvement of the middle and outer coats of the vein, with the lining or intima rarely involved so that the vein is still capable in most instances of carrying blood. The characteristic peculiar to migratory thrombophlebitis is that its lesions will arise in veins in different parts of the body independently of one another in point of time and even with long periods of quiescence between lesions; there is no connection physiologically by extension or contiguity between the lesions.

The doctors on both sides agreed that medical science has not yet determined either the cause of the disease or how it takes hold within the body. Dr. Olcott, a pathologist, testifying for respondent, presented the theory that some central source of toxin production in the body shoots off the harmful toxin intermittently and haphazardly, which explains the appearance of its lesions in different veins at different times.

The doctors also agreed that the disease often, indeed most usually, appears unassociated with trauma. Two of respondent's witnesses, Dr. Bobb and Dr. Duryee, another specialist in peripheral vascular diseases, testified that practically all cases in their experience arose spontaneously and that traumatic injury was rarely, if ever, related to it. Dr. Olcott's opinion was that trauma upon a vein could not possibly cause the lesion at the site of the blow "because the vein that might be struck is not the source of the toxin, it is the recipient of it."

The proofs necessary to sustain a finding of causal connection must be such as to warrant the inference that the

causal relation between the accident and the disease is a probable or a more probable hypothesis, with reference to the possibility of other hypotheses. Hercules Powder Co. v. Nieratko , 113 N.J.L. 195, 203 (Sup. Ct. 1934). The deputy director's opinion analyzes the proofs and states findings "that the injury sustained by petitioner as the result of the accident on June 24, 1940, at best, was only a slight abrasion of the lower left leg, which cleared up in a few days," that "the greater weight of the medical testimony is borne by the respondent's medical experts," and that "the only possible connection the accident might bear to the said disease is merely a temporal one, namely that the condition of thrombophlebitis migrans developed approximately six weeks after the trivial injury to the lower left leg"; and, based thereon, the ...


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