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Gibson v. Todd Shipyard Corp.

Decided: June 1, 1957.

ROBERT GIBSON, PETITIONER-APPELLANT,
v.
TODD SHIPYARD CORP., RESPONDENT-APPELLEE



On appeal from judgment of Division of Workmen's Compensation.

Drewen, J.c.c.

Drewen

This is an appeal from the dismissal of a claim petition for workmen's compensation. Petitioner has been in respondent's employ as a pipefitter and cooper-smith at intervals since March 13, 1946. He was continuously so employed from June 1953 until in or about December 1955. Prior to the latter period and during his said employment he had been hospitalized on several occasions for abdominal surgery. These operations, save for the latest one of them, have no bearing on the present issue. The one operation with which we are concerned occurred December 3, 1952, when petitioner underwent surgery for duodenal ulcer. The present claim is for a herniation through the incision resulting from that surgery. Respondent makes no claim that there is or was any surgical defect.

The petition as originally filed sought an award in the alternative for accident or occupational disease. The proofs did not materialize to sustain a claim of accident and the case on appeal is for hernia as an occupational disease under the statute (N.J.S.A. 34:15-31). The date when occupational disease ensued is charged as November 17, 1955. On that date petitioner underwent a periodical examination by

the plant doctor as the result of which the doctor certified that petitioner was suffering from a ventral hernia that called for "corrective measures." Thereupon petitioner consulted Dr. Visconti, who was petitioner's medical expert in the hearing. It should be made clear that prior to the plant examination on November 17, 1955 petitioner had periodically undergone similar examinations, with no positive finding therefrom except for the prior operational scars. Following the examination of November 17, 1955 petitioner continued to be employed by respondent and is so employed at the present time. After the operation for duodenal ulcer, performed as stated on December 3, 1952, petitioner returned to work. The date of his return was March 30, 1953, and it is during the aforementioned period from June 1953 until in or about December 1955 that the hernial condition complained of is alleged to have had its inception and development, as a result of the extreme bodily rigor of petitioner's work in respondent's plant.

The testimony is replete with detailed description of constantly recurring daily episodes in petitioner's employment requiring the expenditure by him of extreme muscular strain and effort. No purpose would be served by repeating the details of that testimony here. The medical experts are one in admitting the potential competency of petitioner's work as a causal factor in the inception and growth of his hernia. Just wherein the doctors differ will presently appear.

Dr. Visconti made his first examination of petitioner on December 22, 1955. He reports his findings as follows: "In the abdominal region there was noted a long nine-inch operative scar in the left upper abdominal quadrant"; also "a bulging of three inches by three inches in the middle portion of the operative scar. This increases with coughing and there is discomfort on flexing the thighs upon the abdomen." These findings by Dr. Visconti are generally in keeping with those later made by Dr. Watman for respondent.

The issue here is entirely that of causality. The diverse propositions to be dealt with are the tendered hypothesis

of the industrial cause, that is the arduous and laborious employment; and the alternative causal hypothesis of designated commonplace, everyday incidental things like sneezing, coughing, straining at stool and the like. Both physicians admit also the potential causative competency of the latter functionings. Dr. Visconti, in the face of the dominant proof of constant and extraordinary industrial effort, excludes these functionings from the causal hypothesis. Dr. Watman does not exclude them from the causal hypothesis, and each of the two experts gives his reasons. I deem it in order that in this connection both physicians be quoted at length.

Dr. Visconti testified as follows:

"Q. What is your opinion, Doctor? A. It is my opinion that the type of work and the work that this individual did was the causative factor in producing the ventral hernia at the situs of the operation of 1953.

It is based upon the following main considerations: number one, there had been an increase in intra-abdominal pressure sufficient to produce the hernia in the form that it has become manifested; that the individual being, at tops, 212 pounds, ordinarily would be entitled to lift one-fourth his body weight which would be 53 pounds, if he were a normal individual; that is one of the standing rules; however, this man certainly exceeded that weight by a considerable margin and the type of work that he did, the pushing, pulling, all sum up to increase in abdominal pressure over a period of time sufficient to be the causative factor in producing this incisional or ventral hernia."

As to petitioner's freedom from pain throughout the course of the hernial inception and development, which is a significant element in the ...


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