Freund, Stanton and Conlon. The opinion of the court was delivered by Stanton, J.s.c. (temporarily assigned).
This is an appeal from the dismissal of a petition for workmen's compensation. The petitioner-appellant, who will be referred to herein as the petitioner, alleged that he suffered a bilateral hernia as the result of an accident arising out of and in the course of his employment on December 5, 1950. The petition, filed on February 8, 1951, was dismissed by the Deputy Director in the Division of Workmen's Compensation at the conclusion of the petitioner's case. On appeal there was a dismissal in the County Court.
In the original Workmen's Compensation Act there was no specific reference to traumatic hernias, but compensation was recoverable if a hernia was the result of an accident arising out of and in the course of the employment. Chapter 93 of the Laws of 1919 amended paragraph 11 of the act, and in subparagraph (x) thereof provided in part:
"Where there is a real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as either congenital or of slow development and not compensable, * * * unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that * * *."
Then follow the five requirements frequently referred to as the five points, namely, immediate descent, severe pain, prostration that compels immediate cessation of work, notice to the employer within 24 hours, and the requirement of medical attention within the same period. This provision became R.S. 34:15-12 (x). Chapter 74 of the Laws of 1945 changed the standard of proof from conclusive proof to preponderant proof of the five points. Chapter 175 of the Laws of 1950 amended R.S. 34:15-12, and subsection (x) thereof now reads as follows:
"x. Where there is a traumatic hernia compensation will be allowed if notice thereof is given by the claimant to the employer within
forty-eight hours after the occurrence of the hernia but any Sunday, Saturday or holiday shall be excluded from this forty-eight-hour period."
This act was approved June 2, 1950 and the effective date thereof was January 1, 1951.
The hernia for which the petitioner claimed compensation was not a real traumatic hernia as defined in the statute in effect on the date of the accident. The petition was dismissed for failure to establish the required five points. Upon the argument of the appeal, the following stipulation was entered into:
"It is stipulated that if Chapter 175 of the Laws of 1950, effective January 1, 1951, is the law of the case, then the petitioner has made out a prima facie case under sec. 34:15-12x as it now exists.
It is further stipulated that the petitioner's proof below did not make out a prima facie case under the required five points or under the real traumatic hernia section, resulting from the application of force directly to the abdominal wall."
It will be noted that the statute in effect on the date of the occurrence created a presumption or an inference that the hernia was not traumatic and therefore not compensable unless the presumption or ...