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Augustin v. Bank Building and Equipment Corp.

Decided: March 21, 1957.

JULIUS AUGUSTIN, PETITIONER-APPELLANT,
v.
BANK BUILDING AND EQUIPMENT CORPORATION, RESPONDENT-RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

Petitioner, Julius Augustin, was granted an award by the Division of Workmen's Compensation on account of a back disability adjudged to have resulted from an accident arising out of and in the course of his employment. The County Court reversed holding that such an accident had not been proved. 41 N.J. Super. 187 (Cty. Ct. 1956). The diverse judgments in the two tribunals resulted from differing views as to Augustin's credibility.

A first and guiding principle in our review of these cases is that great weight must be given to the judgment of the County Court. Although the authority to make independent findings of fact cannot be doubted, we do not exercise it unless from our study of the record the interests of justice plainly call for a reversal. Jensen v. Wilhelms

Construction Co. , 18 N.J. Super. 372 (App. Div. 1952); Donofrio v. Haag Brothers, Inc. , 10 N.J. Super. 258 (App. Div. 1950); R.R. 1:5-4(b).

The basis of Augustin's claim for compensation is that on October 21, 1954, while working for his employer, Bank Building and Equipment Corporation, as a carpenter he injured his back. More particularly, he says that while lifting a plank weighing 70 or 80 pounds he felt a sharp pain in his spine. He rested a while; around noon he told the foreman that "something happened, I hurt my back," and that he was going to the hospital. After looking unsuccessfully for the superintendent, he drove to the hospital. At that time he had worked for the respondent since September 29, 1954. Prior thereto he had been employed by another construction company off and on for a number of years, the last period ending September 1, 1954.

Augustin was 68 years of age when the hearing took place. The record reveals him to be an intelligent, articulate and perceptive man. He had graduated from high school in Europe and had studied architecture in this country. He was on the witness stand before the doctors and he exhibited an easy familiarity with many medical terms which were relevant to his physical condition and its treatment. Moreover, he was aware of the difference between workmen's compensation claims and claims for sickness benefits and the basis for recovery in each case. In fact, in 1934 or 1935 he had sustained a back injury while working for another employer and had recovered workmen's compensation for it. Since then his back had bothered him off and on; "[i]t came first one or two days, then it stayed around for three or four months, sometimes a year." In 1939 he made another recovery of workmen's compensation for a head injury received while working at the World Fair; in 1930 or 1933 he was struck by a trolley car and hospitalized. At this time he was treated for a stomach injury and his appendix was removed.

It was with this background of experience that he selected and drove himself to the New Jersey Orthopedic Hospital

in Orange. On arrival, in spite of the fact (as he now claims) that he had just injured his back at work, he gave this history:

"Pain over left buttock with left sciatica for three months. Twisted his back at onset * * *."

X-rays taken that day demonstrate that he had back pathology of long standing. There was "marked osteoarthritic lipping of the lumbar vertebral bodies especially [at the second and third lumbar vertebrae]. * * * The sacroiliac joint spaces [were] partially obliterated by degenerative arthritic changes." Apparently he was referred to the back clinic.

Work was resumed the next day. It was described as light work and was continued until November when he was admitted to the hospital. Prior thereto he had visited the back clinic on October 27; the record notes that he showed "numerous changes in his low back," and "in view of the ...


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