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D''Agostino v. Reliance Picture Frame Co.

Decided: May 31, 1954.

SAMUEL D'AGOSTINO, PETITIONER-APPELLANT,
v.
RELIANCE PICTURE FRAME CO., DEFENDANT-RESPONDENT



On appeal from the Appellate Division of the Superior Court.

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

Heher

An award of compensation made by the Division of Workmen's Compensation under R.S. 34:15-7 et seq., but reversed by the Morris County Court, and the reversal sustained by the Appellate Division of the Superior Court, is here by certification at the instance of the employee.

The ground of the reversal is that the proceeding was not instituted within the time limited by R.S. 34:15-51, and the adjudication was abortive for want of jurisdiction.

This is the history:

It seems to be conceded that on June 4, 1948 the employee, in lifting a carton of picture frames for weighing, suffered a left sacroiliac strain with inflammation of back muscles, resulting in his immediate "collapse." He was given medical treatment by Dr. Emanuel Corwin, under the authority of the employer, "almost daily or every other day," until July

23 ensuing, when he was "discharged, improved." But he returned to Dr. Corwin for further treatment of the condition in December 1948, again with the employer's permission, and the employer's contention proceeds on the hypothesis that the statutory period of limitation then began to run. The Employers Mutual Liability Insurance Co. was the insurance carrier at the time.

The employment continued until June 23, 1950, when in lifting a "carton" the employee "felt soreness, a pain, in" his back, followed by "stabbing pains" in "the side" during the night, a condition of such severity that he was still unable to work at the time of the hearing in April, 1951. The New Jersey Manufacturers Casualty Insurance Co. was the insurance carrier at this time. The employee was given medical treatment at the Dover General Hospital, but not under the sanction of the employer or either insurance carrier. The hospital records reveal a diagnosis of osteomyelitis of the first and second lumbar vertebrae. Yet Dr. Heines Wickman, a specialist in orthopedic surgery, found by the use of X-rays a "destructive lesion of the bodies" of these lumbar vertebrae which he diagnosed as "tuberculosis of the spine, Pott's Disease." He found that "in all probability" there is a "causal relation" between the accident of June 4, 1948 and the present condition of disease and disability. He said: "The tubercular lesion has come down from the whole insidious process; I think this more likely originated with the initial injury than with the last episode. I think the last episode no doubt added something to it." This theory of a probable causal relationship is disputed by expert opinion evidence adduced by the employer.

A petition for compensation was filed September 27, 1950, alleging a compensable accident on June 30, 1950, for which June 23, 1950 was substituted by an amendment allowed at a hearing held April 10, 1951. But in response to a question contained in the printed form of petition supplied by the bureau as to whether there are "other facts which you believe important," the petitioner stated: "Petitioner received strain two years ago at plant; was treated by Company Dr. for

one week; was returned to work and put on light job." Service was acknowledged by the New Jersey Manufacturers Casualty Insurance Co., and answer was made by this carrier on behalf of the employer denying that the employee suffered a compensable accident and putting him to his proof.

It was this petition that came on for hearing on April 10, 1951. The employee told of the mishap of June 23, 1950, and the prior accident of June 4, 1948, and he said that the more recent misadventure rendered him incapable of work. It was then that the petition was amended to allege that the later mishap befell him on June 23, 1950, rather than the 30th of that month. The hearing was continued before the completion of the testimony; and on April 11, 1951, a second petition was filed alleging that on or about June 4, 1948, while lifting cartons for shipping, the employee "noticed sharp pain in the back and then collapsed." Service was made ...


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