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Panchak v. Simmons Co.

Decided: March 8, 1954.

GEORGE PANCHAK, PLAINTIFF-APPELLANT,
v.
SIMMONS COMPANY, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Jacobs, J. Oliphant, J. (dissenting).

Jacobs

The Division of Workmen's Compensation granted an award to the plaintiff-employee for injury resulting from an accident which arose out of and in the course of his employment. On the employer's first appeal the award was affirmed by the County Court. On its further appeal the employer did not question that the plaintiff had sustained an injury which resulted from his employment but resisted payment on the ground that it had neither knowledge nor notice thereof within the time limits prescribed by R.S. 34:15-17. The Appellate Division reluctantly sustained this ground and set aside the award. We granted certification on the employee's application. See 13 N.J. 362 (1953).

The plaintiff was employed by the defendant as a mattress maker and was required to lift mattresses from the floor to a bench where they were filled and sewed. During the morning of March 19, 1951 he was lifting a mattress and felt a "sharp jab" in his back. The pain was fleeting and he thought nothing more of it. Later in the morning he felt feverish and faint and dropped himself over the bench. He called to his wife who worked nearby and she called the foreman. He told the foreman that something was wrong and he wanted to go home. In the foreman's language, "You could see that the man was sick"; "he said he had some sort of a pain," indicating towards his back. The foreman called the assistant supervisor who told the plaintiff to report to the first aid department. He reported but received abrupt treatment from the plant nurse who inquired whether he felt sick because he "had an argument." He told the nurse that

he had no argument but that he did not feel well and that something was wrong. She gave him some pills for a cold and he went home. He felt better the next day, went to work, and continued to work thereafter.

About a month after the March 19th incident the plaintiff experienced a pain over his right thigh. He continued to work but the pain worsened and finally in October, 1951 he sought medical treatment. During October he visited several doctors without obtaining any results. On November 1, 1951 he was examined by Dr. Ehrlich, a well known neurosurgeon, who diagnosed his condition as a herniated disk in the lumbar region on the right side. On November 27, 1951 the doctor performed an exploratory laminotomy and although no evidence of a disk was disclosed the pain was relieved by the operation which had a decompressive effect. Dr. Ehrlich was of the opinion that the plaintiff had had a herniated disk and that it was causally related to the March 19 incident which the doctor learned about when he obtained a complete history from the plaintiff on November 1, 1951. On the same day the plaintiff delivered a letter from Dr. Ehrlich to the defendant, reported on his back injury, and made a statement to the adjuster for the defendant's compensation insurance carrier.

R.S. 34:15-17 provides that unless the employer shall have (1) "actual knowledge of the occurrence of the injury," or (2) notice thereof within the time limits therein prescribed, not exceeding 90 days, no compensation shall be allowed. The statutory requirement is designed to afford to the employer the benefits of timely investigation and is mandatory in nature. Hercules Powder Co. v. Nieratko, 113 N.J.L. 195 (Sup. Ct. 1934), affirmed 114 N.J.L. 254 (E. & A. 1935). Its construction and application must, however, be in the full light of the goals of the humane social legislation of which it is part. See Voris v. Eikel, 346 U.S. 328, 74 S. Ct. 88, 92, 98 L. Ed. (1953), where the Supreme Court, in a recent case dealing with a comparable requirement of knowledge or notice in a federal compensation act, pointed out that the act "must be liberally construed

in conformance with its purpose, and in a way which avoids harsh and incongruous results." Cf. Spindler v. Universal Chain Corp., 11 N.J. 34, 38 (1952); Granahan v. Celanese Corp. of America, 3 N.J. 187, 193 (1949). Thus, first-hand knowledge by the employer is held unnecessary; it is enough that his supervisory employees have been duly made aware of circumstances which, in common parlance, would indicate knowledge of the occurrence of the injury. See Gamon Meter Co. v. Sims, 114 N.J.L. 590, 594 (Sup. Ct. 1935); Allen v. City of Millville, 87 N.J.L. 356 (Sup. Ct. 1915), affirmed 88 N.J.L. 693 (E. & A. 1916); Hercules Powder Co. v. Nieratko, supra. And the knowledge suffices though it relates only to the injury rather than additionally to the accident which caused it. Hercules Powder Co. v. Nieratko, supra; General Cable Corp. v. Levins, 122 N.J.L. 383 (Sup. Ct. 1939), affirmed 124 N.J.L. 223 (E. & A. 1940); Kardos v. American Smelting & Refining Company, 132 N.J.L. 579 (Sup. Ct. 1944), affirmed 133 N.J.L. 39 (E. & A. 1945); Layng v. Storch Trucking Co., 17 N.J. Super. 555 (Cty. Ct. 1952).

In the Nieratko case the employee sustained a hernia for which he received compensation for a period of 16 weeks. Later, a petition was filed alleging that a falling barrel had struck him causing not only the hernia but also a brain injury which rendered him insane and ultimately caused his death. The employer contended that its only knowledge was of an accident resulting in a claim for hernia and that it could not be held accountable on the brain injury claim. This contention was rejected in an opinion by Justice Heher which noted the employer knew of the occurrence of the injury and that no particularization or specification of its nature and extent was required. In the Levins case the employee struck his head on a beam. Shortly thereafter he felt as though there was something in his eye and went to the first aid room where the plant doctor removed "a foreign body" from his eye and told him to go home. He was not asked by the doctor about any head blow or other accidental occurrence and he volunteered nothing about it. He continued

to work and though he told the doctor that his eye was "about the same" no further examination was then made. Finally the employee consulted an eye specialist who advised an operation which was performed without satisfactory results. Justice Perskie, in holding that the plant doctor's knowledge was sufficient to bind the employer, pointed out that it was unnecessary that the knowledge include the causal relation between the head blow and the eye impairment since "ofttimes the ultimate results of a particular injury are not ascertainable until a considerable time has elapsed."

In the Kardos case the employee had a common cold and received a prescription for its treatment from the plant doctor. He continued his work in a drafty building with alternating heat and cold. Several days later his condition developed into pneumonia and at quitting time he reported sick, went home and to bed. He was treated by his own physician but on one occasion the plant doctor called upon him. Justice Case rejected the employer's contention that it had neither knowledge nor notice of injury within R.S. 34:15-17, holding that the plant doctor knew of the working conditions and the employee's illness and that was sufficient. In the recent Layng case the employee received a head blow; the court found that the employer did not have knowledge or notice of this happening within the 90-day period set forth in R.S. 34:15-17. However, supervisory employees did have timely knowledge of the employee's sudden blindness which occurred during his employment on the following day and which was later established as being causally related to the blow. Judge Drewen, after properly distinguishing Bobowinik v. Erie Railroad Co., 118 N.J.L. 118 (Sup. Ct. 1937) and Korman v. Hygrade Food Products Corp., 130 N.J.L. 468 (Sup. Ct. 1943), affirmed 131 N.J.L. 188 (E. & A. 1944), on their particular ...


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