This is a workmen's compensation appeal. The petition was dismissed in the bureau and the petitioner appeals.
Deputy Director Medinets determined that the petitioner failed to give notice to the respondent within 48 hours of the occurrence of the hernia, as provided by N.J.S.A. 34:15-12(x).
The transcript reveals that the petitioner testified that on May 7, 1954, while in the employ of the respondent, he was lifting crates on a truck and felt a sharp pain in his right side; that he rested for 15 minutes and that he thought it was "a gas pain or something," and continued working for the rest of the day; that he did not notify his employer of
the incident and he continued to work until May 19, 1954, when he was laid off; that he was not aware of the fact that he had a hernia until he applied for employment at American Airlines and was given a physical examination on May 28, 1954; that he notified the Pacific Airmotive Corporation on the same day (May 28, 1954). The petitioner further testified that he was operated on at the Wyckoff Heights Hospital in Brooklyn; and the hospital bills amounting to $177.44, the bill of Dr. Iamele amounting to $200, and the bill of Dr. Miller for anesthesia amounting to $25 were marked in evidence as Exhibit P-1. Petitioner stated that he lost eight weeks from work.
On cross-examination the petitioner admitted that he has no present complaints and the hernia has been corrected. No medical testimony was produced, it being stipulated that there was no claim for permanent disability.
At the conclusion of the petitioner's case, the respondent moved for dismissal of the petition on the ground that the petitioner failed to conform with the provisions of N.J.S.A. 34:15-12(x) by failing to give the required notice. The deputy director found as a fact that the petitioner failed to give the notice within the time required by statute and dismissed the petition.
In his opinion at the conclusion of the hearing in the bureau the deputy director stated as follows:
"I wish it were within my province to hold to the contrary because I have a very strong personal conviction on that problem. But I must interpret the statute as it is. I wish there would be an appeal. I don't think I very often recommend appeals in these cases, but there are times when it is important to us for the operation of the statute to have a clarification thereof by an upper tribunal. I think this is one type of case that should be passed upon by the upper courts for our guidance, for the guidance of counsel in these cases."
The primary issue is whether under the statute a traumatic hernia should be reported within 48 hours after the incident producing the same, as the respondent contends, or within 48 hours of the time the employee became aware
of the fact that he was suffering from a hernia, as the ...