On appeal from judgment and determination of New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
[17 NJSuper Page 341] This is an appeal from a determination and judgment entered in the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, which held in favor of the petitioner-respondent, hereinafter called the petitioner. She is the widow of one, Michael Furda, who died shortly after suffering an injury which occurred in the course of his employment by the respondent-appellant, hereinafter called the employer. That judgment determined that decedent suffered an accident arising out of and in the course of his employment, that such accident caused his death and that petitioner at the time was wholly
dependent upon him within the meaning of our Workmen's Compensation Act. R.S. 34:15-13, N.J.S.A.
There is no contention on this appeal that there was lack of notice or knowledge of the accident and it is further obvious that the accident, whether or not compensable, arose in the course of the employment. Bryant, Adm'x. v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913).
The appeal goes to three fundamental bases of the judgment. It contests the fact of accident arising out of the employment; it suggests an alternative theory of the cause of death in derogation of the causal link between the traumatic accident and the death; and, it challenges the proof of total dependency of petitioner upon decedent.
The physical facts surrounding the injury and death, as distinguished from the medical conclusions voiced concerning them, are not in substantial dispute, and upon the basis of the whole record and transcript of evidence, I find these facts to be as follows:
Decedent was a kiln-drawer at the plant of the employer in Trenton and on the day of his death was pursuing his regular work in association with three other employees. This work at the time consisted of processing certain boxes, at a work table or bench faced by such employees, preparatory to taking the boxes a short distance away for washing. Directly behind these workers, and some 4 or 5 feet from the table, there was a depression in the concrete floor about 10 feet in width and 27 inches deep. This "pit" had a concrete floor and two sets of metal tracks on which ran small flat cars which transported working materials to the men at the table. When these cars were in place in the pit, their flat tops were even with the floor, really amounting to a continuation thereof, but when the cars were absent, the pit constituted, of course, a rather substantial drop, unprotected by guard rail of any kind.
Shortly before 2:00 P.M., while the fellow employees of decedent were momentarily absent from the table, carrying the boxes they had assembled for the short distance necessary
to wash them, and while decedent was piling a group of boxes for the same purpose, these latter boxes were heard to fall and were found near the table. The decedent apparently collapsed or fell into the pit referred to during the few seconds he was out of the view of his fellows. They found him lying on his back with his head against the second rail from the concrete floor, bleeding from the nose and the back of his head, and unconscious. He was taken to hospital immediately and died there at 2:40 P.M. Before the incident referred to, he had seemed completely normal, in jovial mood and without complaint.
Shortly after death, an autopsy was performed by Dr. David Eckstein, a specialist in this field. There were found fragmented compound fractures of the occipital and parietal bones of the skull, resultant hemorrhages beneath and outside the dural membrane, a cerebellar laceration and a subarachnoid hemorrhage. These hemorrhages and laceration were caused by the fractures and the witness testified that such fractures and associated injuries to the brain caused the death of decedent. This doctor had also noted evidence of intraventricular hemorrhage, which he thought was nontraumatic in origin although he could not determine the time relationship of such bleeding to the traumatic injuries to the skull and brain which caused death, and thus he did not undertake to comment on the possible independent effect of the former, if any.
The two medical witnesses of the employer opined that the intraventricular bleeding was non-traumatic in origin and that it was the immediate cause of the fall of decedent into the pit. They further thought, in view of certain hypertrophic changes in the heart, the age and probable blood pressure of decedent, with the consequent probability of some degree of benign hypertension, that there was produced a condition of susceptibility to a fatal cerebral hemorrhage, which, primarily, enabled them to attribute the cause of death exclusively to this non-traumatic cerebral incident. [17 NJSuper Page 344] The cleavage in this evidence requires careful examination of the weight of these conflicting medical opinions. I am bound to say that such analysis seems to me to weigh clearly in favor of the views of the physician who performed the autopsy and thus observed these conditions at first hand. The logic of his conclusions is impressive, much more so by reason of his hesitancy to speculate on the time of occurrence and the possible independent effect of the intraventricular bleeding. On the other hand, the chain of conclusions upon which rests the opposing medical case is very tenuous. This case is based solely upon answers to hypothetical questions. Reason would seem to seek out a very compelling basis for the defense conclusion that death ensued, independently, from cerebral bleeding which probably preceded a fall of such violence as to cause the fractures and brain injuries described. This is particularly true when such traumatic injuries are conceded to be of a fatal type in and of themselves. I do not find in the evidence any explanation of such positive opinion, which appears to me to be other than speculative. One defense witness attached unjustified significance to the order in which the autopsy surgeon listed his observations in his protocol, as though such notations indicated the chronological order of the events whose results were thus noted down; for this reason such witness concluded that the intraventricular hemorrhage preceded and caused the fall into the pit. This witness finally declared that either injury could have caused death, or the non-traumatic hemorrhage and the fracture ...