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Mewes v. Union Building & Construction Co.

Decided: May 3, 1957.

WALTER H. MEWES, PETITIONER-APPELLANT,
v.
UNION BUILDING & CONSTRUCTION CO., RESPONDENT-RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

The petitioner was awarded compensation by the Workmen's Compensation Division for the loss of his left eye. The County Court reversed, and the petitioner now appeals to us, raising two, largely factual, questions: first, did an accident occur; and, second, if so, did it aggravate a quiescent infection located in the eye and thus contribute to its loss?

On a review of factual findings in a workmen's compensation case, the criterion governing this court is whether the interests of justice have been satisfied. Augustin v. Bank Building and Equipment Corp. , 44 N.J. Super. 242 (App. Div. 1957). The first question here is whether there was, in fact, an accident. Petitioner's testimony was to this effect. On August 20, 1953 he was applying form oil to certain wooden forms with a large whitewash brush, when the brush, striking steel reinforcing rods which covered the forms, spattered oil over his face and into his left eye. It left a burning sensation in the eye. He reported the incident to his foreman and did no work during the remaining hour of his working day. The next day he returned to the job, though his eye bothered him "terrific." On his cross-examination there is some suggestion that he, perhaps that day, signed a report of an accident, filled out by a shop steward. In any event, he worked a full day and, at his foreman's suggestion, went to a doctor for treatment that night (the day after the accident, not three days thereafter, as the County Court said). This doctor sent him to an eye specialist, whom he saw the next morning. The accident itself was corroborated by two co-workers, and quite convincingly so.

The employer points to four circumstances as discrediting the story of an accident. First, it notes that petitioner himself paid a substantial part of his medical expenses without looking for reimbursement from it. The employer argues that these are "not the actions of a man who had sustained an accident." Bouvier v. County Gas Co. , 134 N.J.L. 89 (Sup. Ct. 1946). But this argument is rather

thin. Not only did the employer (or the insurance carrier) meet a good portion of his medical expenses, but it paid him compensation for temporary disability, 11-2/7 weeks, and for permanent disability, 33 weeks, before it decided to reject the claim. It is hard to believe that in those 44 weeks, while he was paying or at least incurring most of these expenses, his actions were those of a man who had not sustained an accident.

Second, something is attempted to be made of the failure of petitioner to produce at the hearing the doctor who saw him on August 21, 1953. In view of the proofs here, indicative of an accident, we do not think this to be a matter of much moment. Incidentally, since this doctor was not an eye specialist, his testimony would not have been of great help on the question of causation; nor would his testimony as to the outward appearance of the eye on August 21 have been a very significant matter under the theory of causation expounded by petitioner's expert. The County Court and the employer rely also upon the failure of petitioner to produce at the hearing a New York doctor who examined petitioner's eye once in connection with the proposal of the employer's authorized doctor to put him into a hospital for thyroid therapy treatment. This does not look to be an important matter either.

Third, the employer and the County Court place some weight upon the testimony of the eye doctor, who saw petitioner on August 22nd, indicating that according to the doctor's records the first time petitioner spoke of getting oil into his eye was on January 19, 1954. However, the doctor seems to have been in error here. His son who was associated in practice with him, said that the first time petitioner saw him (the son), petitioner spoke of the entry of the oil in the eye; that the son didn't think "those records are valid"; and in fact, under date of September 21, 1953 he made a notation on the record as to the oil in the eye. Incidentally, petitioner testified very positively that he told the father on August 22 that he had gotten form oil in

his eye while on the job, but that the doctor said, "No you didn't; you got iritis."

Fourth, the County Court casts imputations upon the bona fides of petitioner's claim because his petition was not filed until a year and five days after the accident. However, the petition had been verified eight days before -- seven weeks after the employer had ceased paying compensation voluntarily. These suspicions of the County Court, which had little, if anything, to support them, undoubtedly affected its decision on the question of causation.

The deputy director, who saw the petitioner and his co-workers testify as to the accident, said he believed they were telling the truth. Indeed, he found the proof to be conclusive on the point. We, too, are convinced that the accident occurred as petitioner stated.

We turn then to the more difficult question of causation. Petitioner's medical expert first examined his eye almost a year after the accident and just before it had to be enucleated. On the stand the doctor rested his opinion upon what he then had learned and also upon petitioner's story as to the spattering of oil in the eye, a story related to him in a premise to a hypothetical question. His opinion was this: the oil had irritated the eye, stirring up its neurovascular mechanism and creating an inflammatory reaction throughout the entire uveal tract, posterior as well as anterior, which disturbed a quiescent infection there. He added that he would not expect to have found (what the employer's authorized treating physician said was not there) any visible evidence of a burn on the eye, as a result of such an inflammation. In short, his testimony was that the irritant had excited or aggravated the quiescent infection, producing uveitis, which all doctors agreed was the cause of the eye's destruction. The law is settled that if an accident combines ...


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