The opinion of the court was delivered by Goldmann, J.A.D.
Continental Baking Co. appeals from a judgment of the Passaic County Court affirming a compensation award in favor of petitioner Goldstein, its employee, by the Workmen's Compensation Division. The single question raised on this appeal is whether the company had knowledge or notice of petitioner's claimed accidental injury within 90 days of August 31, 1951, the alleged date of its occurrence. It denies it had either knowledge or notice within the time and in the manner prescribed by R.S. 34:15-17 and 18. Both tribunals below found to the contrary.
Petitioner worked for Continental as a baker's helper. His duties consisted mainly of lifting and placing bread pans into an over. He testified that on August 31, 1951 he felt a bad pain in his back while reaching down to get a pan. He did not tell anyone of the incident, but finished out the day. The next day he phoned that he would not be in to work. He then returned to work and continued at his job because he thought he had only a slight cold in his back. Petitioner further testified that he told his supervisor, Mr. Pfizenmaier, about his back condition only "after I had gone to the doctor at several months later." By way of explanation he said, "See, the reason I didn't go right away was because I figured I might have a slight cold in there, so I didn't take it serious enough."
Petitioner first went to a doctor on October 10, 1951, and was given the following note:
Philip Goldstein is under my care for back pain. He must not do any twisting, turning or bending in order for this condition to improve.
He gave this note to Pfizenmaier but could not remember when. There is no proof as to just when the note was delivered, but it was in the company's possession at the time of the trial.
Petitioner continued to work until December 8, the beginning of his two-week vacation period. He testified that while on vacation he phoned Pfizenmaier and said he would take a few weeks' rest, that his back was giving him trouble and he would not be able to return to work at the end of his vacation. He apparently also went to the plant during the vacation period and told Pfizenmaier that his back was bothering him too much and he would have to take "a little resting period to see if it would go away."
It is uncontroverted that petitioner worked continuously from the time of the alleged accident up to the beginning of his vacation on December 8, with the exception of September 1. Counsel stipulated that petitioner's employment with Continental ended in December 1951 because of the slack season; petitioner being low man on the seniority list was the first to be let go.
The deputy director, after referring to the doctor's note of October 10, concluded that the note had been given to the employer on that date, and in his summary of determination, rule for judgment and award found that Continental had "due and timely" notice of the accident. In passing on the issue of knowledge or notice, the County Court found that "the employer, under the circumstances of the case, had actual knowledge of the ...