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Kopitnikoff v. Lowenstein Bros. Inc.

Decided: February 10, 1953.

JACOB BORIS KOPITNIKOFF, ALSO KNOWN AS JACOB B. KOPP, PETITIONER-RESPONDENT,
v.
LOWENSTEIN BROS., INC., RESPONDENT-APPELLANT



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).

Francis

This is a workmen's compensation action in which an award of 50% of total permanent disability was granted in the bureau and affirmed in the County Court. The employer again appeals.

The record discloses that the workman, Jacob Kopitnikoff, sustained two cerebral hemorrhages as the result of which he became totally disabled. In addition to an incapacitating paralysis he lost the power of speech. However, he remained able to utter just one word, "Da," which means "Yes" in Russian.

At the time of the hearing Kopitnikoff was confined to the Newark Convalescent Home and arrangements were made for the taking of his testimony there. The deputy director, the attorneys for the parties, Mrs. Kopitnikoff, the disabled man's wife, and the official reporter appeared at the home for this purpose.

Prior to the examination the employer's attorney referred to Kopitnikoff's condition and his inability to speak, advised the deputy director that in the opinion of the employer's physicians the witness was mentally incompetent, and asked that the question of competency be determined as a preliminary matter. The deputy director indicated that the problem was one of fact and an effort was thereupon made to conduct an examination in English.

This examination having proved infeasible, another patient, Samuel Margolis, who spoke Russian, was pressed into service as an interpreter. Margolis had known Kopitnikoff for about a year and a half, during which time they had been patients in the same ward. He said he had no interest in the case and had never discussed it with the Kopitnikoffs.

Margolis further asserted that Kopitnikoff understood him when he talked to him. This understanding was indicated by a shaking of the head because "he can't talk."

An objection was interposed to the use of Margolis as an interpreter, but it was overruled.

As the examination began counsel instructed the interpreter to repeat the question to the witness in the manner in which it was asked. The interpreter then said:

"I have difficulty hearing, medicine dopes you up."

This statement was followed by further inquiry:

"MR. FOSS: Just a moment, one question. What do you mean when you just said, 'Dope me up,' have you had medicine this morning?

MR. MARGOLIS: I have.

MR. FOSS: Do you know what it is?

The Interpreter: I don't know what it is.

MR. FOSS: What effect does it have on you?

The Interpreter: It affects --

The DEPUTY DIRECTOR: The hearing. He has been telling me he can't hear well.

The Interpreter: It affects hearing.

MR. FOSS: In what way?

The Interpreter: Hearing, can't hear so good.

MR. FOSS: Anything else, does it affect you in any other way?

The Interpreter: Well, just the drums.

MR. FOSS: Does it affect your eyes?

The Interpreter: That's right.

MR. FOSS: How?

The Interpreter: I don't know, when I get medicine I feel all dizzy.

MR. FOSS: You feel dizzy?

The Interpreter: Yes.

MR. FOSS: Do you feel dizzy right now?

The Interpreter: No, not much.

The DEPUTY DIRECTOR: All ...


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