On appeal from Division of Workmen's Compensation.
This is an appeal from a determination by the Division of Workmen's Compensation in favor of the petitioner. The award totaled something over $12,000. Excepting that the case may establish a precedent for a claim for compensation on the basis of "carbon-monoxide poisoning," it is not clear why the record is as extensive as it is. It may be that simulated claims for compensation due to such poisoning involve serious implications to employers since no similar case has been called to our attention. Although the record comprises some 1,150 pages, the factual situation is not involved and may be fairly summarized by the following findings:
The petitioner is 43 years old and has been employed by the respondent as a bus driver for approximately 23 years. On March 29, 1949, he underwent a complete examination to determine his physical qualifications for this position, the result of which revealed he was normal and enjoying good health. On June 27, 1949, a warm and humid day with the temperature ranging between approximately 80 and 90 degrees, the petitioner started on his usual run from Allwood, New Jersey, to New York City. He first noticed fumes in the bus in Nutley, New Jersey, when the bus backfired. His head began to ache and the pain grew in intensity until he reached the Lincoln Tunnel where he stopped to pay a toll fare. Until this time all the windows of the bus had been closed, but in order to pay the toll it was necessary to open the window. Despite the fact that he "got a breath of air" and felt better, he closed the window after paying the fare. He continued into the tunnel and while going through, fumes continued to come up at him "from the front" of the bus "right up into my face." His headache became "terrific." After discharging the last passenger at 41st Street and 8th Avenue in New York City, he continued to his destination, the Greyhound Terminal at 50th Street, where he suffered acute nausea. He was taken to St. Claire's Hospital in a virtual state of collapse. There, Dr. Dragan, the admitting physician, diagnosed the case as "acute gas poisoning, exhaust."
His final diagnosis, upon discharge on July 5, 1949, was "carbon monoxide poisoning." After experiencing several months of periodic dizzy spells, severe headaches and nausea, and periods of confusion and loss of vision, for which he was treated by Dr. Allen, his family physician, he was sent to the Passaic General Hospital for four or five weeks. During this time Dr. Somberg saw the petitioner and on February 14, 1950, after conducting a pneumo-encephalogram, analyzed the results as suggesting "definite organic cerebral disease," but due to the temporary relief which was brought about by this procedure it was "decided to discharge the patient and keep him under observation." Since the neurological symptoms persisted, Dr. Somberg had the petitioner admitted to the Crippled Children's Hospital in Newark, in April, 1950, at which time he performed a bilateral trephine, which is the making of a hole in the skull on both sides, and an analysis of the soft tissues of the dura. The results of this operation led to the following conclusions by Dr. Somberg:
1. That the petitioner "has an extensive cerebral atrophy following an episode of anoxia" (which is inadequate oxygen to a given part of the body, in this case the brain) suffered on June 27, 1949;
2. That the petitioner, as a result of this episode, is "100% totally and permanently disabled"; and
3. That he "will continue to go down hill."
Although some relief was obtained by Dr. Somberg's operation, the petitioner still has the same complaints referred to above, and has not returned to work since June 27, 1949.
The respondent maintains that the judgment below is erroneous because the petitioner has failed to show (a) that there was an accident, and (b) that his alleged disability is causally related to his employment.
The respondent's first contention is that there was no accident, i.e. , that the petitioner's claim that he was overcome by fumes was entirely fictitious. To substantiate this contention ...