On appeal from Superior Court, Appellate Division, whose opinion is reported at 28 N.J. Super. 55.
For reversal -- Justices Heher, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt and Justices Oliphant and Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
The Appellate Division set aside a workmen's compensation award allowed by the Division of Workmen's Compensation and sustained by the Passaic County Court. The single ground of reversal was that the proofs did not show, as required by R.S. 34:15-17, that the respondent employer obtained knowledge, or was given notice, of the injury within 90 days after its occurrence. Goldstein v. Continental Baking Co., 28 N.J. Super. 55 (1953). We allowed certification on the employee's petition, 14 N.J. 464 (1954).
Petitioner was employed as a baker's helper. He fed the ovens with pans of bread, approximately 720 pans every hour during a seven or eight hour day. In his words, "it's not just bending down, you have to make a complete twisting around motion; it goes around in a circle. See, you bend down, you grab your pan, then you place it in the oven three across. Then right after that there are another three coming and you have to dump those three out because those are all baked already. And then you have to quickly turn around and reach for the next one. You keep doing that all the way through."
Sometime during June or July 1951 he started feeling pain in his back and on August 31, 1951, while reaching down for a pan to feed the oven, he experienced a sudden sharp and severe pain in the lower part of his back and had to stop and rest a while. He did not go to work on the following day, September 1. He "thought maybe it might be a slight cold I was getting in my back," "I didn't take it serious enough," and did not consult a physican or say anything about it at the time to his supervisor, Mr. Pfizenmaier. He continued working after September 1 despite constantly
recurring twinges of pain suffered while working and even while lying down to sleep at night. He finally consulted his own physician, Dr. David Doktor, on October 10, 1951. The physician suspected "a ruptured intervertebral disc in the lumbar spine." It eventuated that the parties accepted at the hearing the diagnosis of respondent's consultant, Dr. Toufick Nicola, made over a year later, that in fact petitioner suffered a "lumbrosacral sprain associated with a facette syndrome. There is no clinical evidence of a disc injury."
Dr. Doktor prescribed a pain-relieving drug, tolserol, and advised rest, instructing petitioner to return if the pain persisted. Petitioner told him of "the bending and twisting he had to do" on his job and was given a note by the doctor, dated "10/10/51", reading:
"Philip Goldstein is under my care for back pain. He must not do any twisting, turning or bending in order for the condition to improve.
The respondent produced the note at the hearing and it was marked in evidence by consent. The petitioner testified that he had delivered the note to his supervisor, Mr. Pfizenmaier, but did not fix the date of the delivery. Nor was there any testimony on behalf of the employer as to the delivery date.
The doctor's note does not contain the elements of a notice prescribed by R.S. 34:15-18, and we must therefore decide (1) whether the note sufficed to bring home to the employer the alternative under R.S. 34:15-17, namely, "actual knowledge of the occurrence of the injury," and (2) if the note did suffice as knowledge within statutory intendment, was it "knowledge obtained within ninety days"; the statute expressly provides that "Unless ...