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Carroll v. Newark Printing Co.

Decided: April 17, 1953.

MACK CARROLL, PETITIONER-APPELLANT,
v.
NEWARK PRINTING COMPANY, RESPONDENT-RESPONDENT



Francis, J.c.c.

Francis

The claimant here was denied an award of workmen's compensation for failure to establish that he had suffered an accidental injury arising out of and during the course of his employment. Hence this appeal.

Prior to the alleged incident of November or December 1950 Carroll had been in respondent's employ about 12 years as a compositor. This work entailed the cutting and trimming of copper and zinc plates with a power saw. And he testified without contradiction that as a normal incident of this operation fine particles or splinters of metal would be thrown off and come in contact with his nose or ears or other parts of his body.

Three or four days prior to January 6, 1951 he noticed a slight swelling on the edge of the right side of the septum of his nose. He thought it might be a hair, so he pulled it out and it bled a little. On January 6, he visited Doctor Edmond Edelson who diagnosed a small cancerous growth, known as an epithelioma. The doctor removed it by surgery

and administered some X-ray treatment at the site of removal.

Carroll had no idea what the condition was nor what had caused it until during a conversation with Doctor Edelson he was told that it might have come from a splinter of metal flying from his power saw and striking his nose. However, although he worked regularly with the saw he had no recollection of any specific time when he was struck in the nose by such a splinter. Nor did he have any recollection of this portion of his nose ever being struck by a splinter. If it had not been for Dr. Edelson's suggestion it would not have occurred to him that his nose condition might be related to his work.

The record discloses that Dr. Edelson was not in the hearing room when this testimony was given. When the doctor appeared he said that on the occasion of the first examination Carroll told him he had been struck in the nose by some flying metal splinters and that in November or December 1950 he noticed a sore or lump on his nose, which did not heal. At another place in the testimony the doctor asserted that Carroll said he noticed the cut or sore from the splinters right after the accident or injury. And he said he was sure this was the history given to him. In answer to a hypothetical question which substantially incorporated this history he attributed the epithelioma to the accident.

Appellant also called another medical expert who was asked to assume that "either one or two weeks before January 15, 1951 or once prior to that time, six weeks prior to that time, the exact date of which is unknown to him * * * he was struck by one of these splinters, it hit and embedded in his nose," and to state whether there was a causal relationship between that incident and the growth. To this question the doctor's answer was not very responsive:

"This man was subjected to an atmosphere in which flying bits, fine metal pieces, struck him about the face. Such injuries may lead to that type of irritation, it may be followed with the epithelial horn of a very malignant type which was subsequently removed. I believe such occurrence did, in fact, happen and that the resultant injury was surgically removed."

It should be recalled that Carroll had been working on the power saw and apparently exposed to flying metal particles for years, and that at no point in his testimony did he fix any specific time when he was struck by such particles at the site of this malignancy. Nor did he say that he had ever been struck there at any time to his knowledge within two years prior to the filing of his petition for compensation. And there is no circumstance in his employment, beyond his constant exposure to these particles for many years, from which an actual contact between flying metal particles and the site of the cancer within such a two-year period could be inferred.

Appellant's medical witnesses gave no opinion or statement of the incubation period of cancer germs or bacilli or cells from the time of injury, and no opinions as to the length of time this growth had been in existence or developing. Their conclusion of causal relation was based upon the assumed fact recited in the hypothetical question that an actual contact between the diseased area of the nose and a metal splinter had taken place "one or two weeks before January 15, 1951, or once prior to that time, six weeks prior to that time, the exact date of which is unknown to him, * * * he was struck by one of these splinters, it hit and embedded in his nose * ...


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