Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
The Workmen's Compensation Bureau awarded petitioner partial permanent disability of 5% of total for a back injury allegedly caused by an accident arising out of and in the course of his employment with respondent
on November 30, 1949. The Sussex County Court sustained the award on appeal. Respondent now appeals from the judgment of affirmance.
The record is complicated by the fact that two claim petitions filed by Conquy, respectively involving accidents alleged to have occurred on November 30, 1949 and April 17, 1950, were by stipulation tried together. Respondent company's motion to dismiss the second claim petition was granted by the deputy director at the conclusion of the hearing in the Bureau, and no appeal has been taken therefrom.
Conquy had been in respondent's employ as a meter reader for some eight years. He testified that on the morning of November 30, 1949 he stopped his truck in front of a house where he was to read a meter, opened the door to get out, and just as he put his foot on the ground experienced a severe pain in his back, described as the right lumbo-sacral area. He felt better after a few minutes, went on to read the meter, and then read two others before the pain became so severe that he had to return to the Newton office. The branch manager drove him to a local physician who strapped up his back. Conquy had never had back trouble before this incident.
The next day petitioner went to Dr. Boston, an osteopathic physician. The diagnosis was low lumbar sprain and a slight sacroiliac condition. He treated petitioner on December 1, 2, 3 and 5 and recommended a sacroiliac belt which Conquy purchased. Dr. Boston next saw him on January 9, 1950 when he came in for a checkup, and at that time petitioner said he "was feeling all right" and "needed no more treatment." Examination revealed that the patient "had no pain and no trouble." Petitioner again saw Dr. Boston for a checkup on June 2, 1950 and told him he was all right and had been working. The doctor gave him a thorough examination and found everything normal.
On January 31, 1950, petitioner had visited a Dr. Spurgeon to be examined relative to bilateral inguinal hernias of long standing. At that time he told the doctor his back felt
all right. Dr. Spurgeon operated to repair the hernia condition on March 2, 1950, gave post-operative treatments until April 3, 1950, and released petitioner to return to work on April 17, 1950. He next saw Conquy on June 16, 1950 and at that time he complained of a pain he had had for the past month in his right hip, running down the thigh and back of the leg. The pain followed the right sciatic nerve and there was a tenderness in the right groin. Conquy gave the doctor a history of a fall suffered on April 17, 1950 when he fell down the back stairs of a house where he had gone to read a meter. In the course of the fall his back hit against the corner of a garage; he landed on his right side and his right ankle pained severely.
Dr. Spurgeon diagnosed Conquy's condition as sciatica and treated him for it from June through September with diathermy and leg injections. Toward the end of this period he learned from petitioner that on September 7, 1950 he got a sudden pain in the mid-region of his back while reaching into his car for a package. He X-rayed Conquy immediately and found the sacral and sacroiliac joints normal, just as he had when X-rays were taken two months before; and the intervertebral discs, as far as he could judge, showed no changes.
Dr. Spurgeon did not see petitioner again until April 13, 1951, when he came to see him about a pain in the right inguinal area. He also complained of a pain in his back. The doctor operated on April 25, 1951 and found a weakness of the inguinal ring and a large fat lobule.
On November 13, 1950 Dr. Massengill, a specialist in orthopedic surgery, examined petitioner at the request of respondent's attorney. Conquy told him of the November 30, 1949 incident and that his lower back was all right after a few treatments by Dr. Boston. He also told him of the April 17, 1950 fall and of Dr. Spurgeon's treatments, but made no mention of the September 7, 1950 incident. Conquy complained of ...