On appeal from the Department of Labor and Industry, Division of Workmen's Compensation.
This is an appeal by respondent from a determination and judgment entered in the Division of Workmen's Compensation in favor of the petitioner. The appeal is pressed on two main grounds: (1) that petitioner's injury was not the result of an "accident" within the intendment of the Workmen's Compensation Act and (2) lack of notice or knowledge of the alleged injury within the statutory period of time, i.e. , 90 days.
The record discloses that on January 18, 1951, and for ten years prior thereto, petitioner had been employed by respondent as a ship's carpenter. He was then 66 years of age. He testified that on the date mentioned he and a co-worker were engaged in the shipyard in carrying on their right shoulders a 4 x 10-inch beam, approximately 12 feet long and weighing about 200 pounds. The yard had a surface of dirt and ashes. Petitioner was in the rear. Suddenly, "I had a sharp terrific pain run up my spine and I collapsed. * * * I went to the ground. I just simply -- my knees went out from under me -- * * * with the
crunching position the best way I could, with my back and legs all doubled up under me." In falling, the beam landed on top of him, or as he described it, "It went over me." The foreman almost immediately appeared at the scene and directed another worker to continue the carrying job. He assigned petitioner to light work aboard ship for the balance of the afternoon.
Petitioner testified that he has been in constant pain and under the care of doctors, both at home and in the hospital, since the described incident. He has not worked since that day.
Several physicians appeared on his behalf. The substance of their testimony was that on the date mentioned petitioner was afflicted with an osteoarthritis and rheumatoid arthritis of the shoulders, knees and spine which disabled him to the extent of approximately 80 per cent as a working unit. They conceded that this disability is independent of and not causally related to the incident of January 18, 1951. However, it was their opinion that the accidental injuries when added to the latent condition contributed to the point where he is now totally disabled.
Dr. Siegel, a neurologist, appearing for petitioner expressed an opinion that he suffered a bilateral lumbosacral radiculitis as a result of the accident. On cross-examination he explained his conclusion that the condition found was the result of an accident, as follows:
"Q. * * * Now, with the background you have in this case what, other than a spontaneous onset of arthritic pain, can you put your finger on as the cause of a lumbar sprain?
A. Well, he was carrying this heavy plank on his back and his weight bearing is changing as he is stepping. Now, if he steps down a little, a little, just a little lower, or if he doesn't carry his weight bearing properly, with the already irritated back that he has, this thing could cause him a sprain as a result of altered weight bearing."
(It should be noted, as stated earlier in this opinion, that the surface upon which petitioner was walking was of ...