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Ricciardi v. Marcalus Manufacturing Co.

Decided: October 21, 1957.

JOSEPHINE RICCIARDI, PETITIONER-RESPONDENT,
v.
MARCALUS MANUFACTURING COMPANY, RESPONDENT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

Respondent appeals from a judgment of the Passaic County Court affirming an award for temporary and permanent disability in the Division of Workmen's Compensation in favor of petitioner. The theory of the claim, as stated by counsel for petitioner during the hearing before the Division, is that there was an "aggravation" of a "pre-existing carcinoma," or cancer, in her left breast as a result of being struck while at work by a falling ten-pound carton on December 11, 1953. Three days later, according to her testimony, petitioner noticed a lump in her breast at the point of injury, and the entire breast was removed surgically on March 12, 1954. Respondent's position is that the blow from the carton had no aggravating effect on the cancer or upon the plaintiff's disability and that the incident, far from adversely affecting petitioner's prognosis, has improved it by leading to discovery of the lump and earlier surgical therapy.

A proper discharge of our appellate function in this case has required close scrutiny of the proofs as well as the rulings in the Division and the County Court.

Petitioner, aged 46, was engaged as a packer when she was struck on the date indicated by a carton of wax paper which had fallen two feet. The resulting pain was severe enough to prevent her from continuing her work for the

next five minutes. Several minutes later, in the ladies' room, she noticed a red bruise where the carton had hit her. She showed this bruise to two co-workers. Two days later she noticed discoloration taking place (black and blue), and this was corroborated by the co-workers. The next evening, three days after the accident, she first noticed the appearance of a "lump" in that area of her breast about the size of "the tip of my pinky." The following day, the 15th, she went to the plant physician, Dr. Bongiorno, who diagnosed her ailment as hematoma (hemorrhage of the tissues) and recommended application of heat. The doctor testified that the breast was not then black and blue but that petitioner said it had been the week before. He described the lump in her breast as "a nodule and hard and irregular." He was "suspicious of a growth" when he saw it. Petitioner saw her family doctor, Dr. Curtis, that night, who likewise recommended heat treatment. She then went to a Dr. Gallo, who told her the lump would have to come out. Neither of those doctors was called as a witness. She then went back to Dr. Curtis, who recommended Dr. Bender, a surgeon. She saw Dr. Bender in March 1954, and on March 12 he performed a radical "mastectomy," or removal of the left breast and surrounding muscles, glands and tissues. The growth was diagnosed as cancerous.

Medical examination of the petitioner indicated that she was in generally good physical condition by the time of the hearing in May 1956 and had been back at her job doing lighter work since August 1954. No doctor who testified in this case found direct evidence of any existing metastasis (spread) of the cancer in petitioner's body, although it is clear from the proofs that it is nevertheless possible in this, as in any case of breast cancer, that unobserved dispersal of cancer cells did occur prior to surgery and may become manifest in the future. Only time can tell. There was also apparent unanimity of medical opinion that whether or not petitioner had experienced the accident here involved, early surgical removal of the breast would have been indicated as the appropriate treatment. [47 NJSuper Page 94] Before proceeding to a detailed consideration of the expert opinions offered in this case as to the causal relationship between the accident and petitioner's condition, it will be helpful to formulate the precise factual issues posed for resolution. Only in that manner can we logically assay the proofs against the rules as to sufficiency of factual support for the first instance rulings which govern this court on the present review. The approach taken by petitioner's experts, or at least of one or the other of them, suggests that the "aggravation" of the pre-existing cancer is postulated upon the occurrence of trauma to the cancerous tumor, leading, in turn, (a) to a more rapid enlargement of the tumor than would have otherwise occurred, and (b) to the probability of dissemination of the cancer cells, and, therefore, to a more unfavorable prognosis for the plaintiff in terms of the likelihood of metastasis. In reference to the first of these hypotheses, if considered as unrelated to the second, it may appear questionable, in terms of the theory of compensation recovery as based upon disability or death arising from accident, N.J.S.A. 34:15-12, 13, that a faster rate of tumor growth should be relevant to the right of recovery, where, as here, there is no dispute but that removal forthwith of the entire breast, with such impairment or disability as would have attended such surgery, would have been required even if the supposed trauma had never taken place. We are satisfied, however, that the controlling decisions pertinent to this question, though not directly in point, require the conclusion that if, in fact, the accident caused this tumor to grow faster than it would have otherwise, there must be recovery for all of the disability incidents of the disease notwithstanding that such increased rate of growth did not have anything to do with the medical decision to operate beyond making the necessity to do so manifest earlier than otherwise. See Welch v. County of Essex , 6 N.J. Super. 422 (Essex Co. Ct. 1949), affirmed 6 N.J. Super. 184 (App. Div. 1950); Kling v. Central Lumber & Millwork Co. , 3 N.J. Super. 151 (App. Div. 1949); Russo v. Wright Aeronautical Corp. , 1 N.J. 417

(1949). See also 1 Larson, Workmen's Compensation Law (1952), ยง 12.20, p. 172, n. 84.

As to the second branch of the hypothesized aggravation, the worsened prognosis, we reserve comment until the discussion of the evidence on the point, infra.

The testimony concerning the alleged increase in size of the lump in petitioner's breast between the dates of the accident and the operation may be summarized as follows. Petitioner herself testified that during that period the lump "was getting bigger and bigger"; on cross-examination, that it doubled in size. Two co-workers testified that it got larger. One said, "much larger." Dr. Bongiorno testified that on the occasion of his examination in December 1954 the lump was "about a centimeter or a half inch." (A centimeter is about 2/5 inch.) Dr. Bender, the surgeon, found it to be "about 1 centimeter in diameter" upon his pre-operative examination March 11, 1954. His report as to the operative record gave the size of the mass as "about 1 1/2 cms. x 1 cm."

On the basis of a hypothetical question, with premises inclusive of the lay witnesses' estimates of the growth of the lump, as to whether there was a connection by way of "causation, aggravation or acceleration" between the accident and "the condition" of the petitioner, the first response of Dr. Bender as a witness for petitioner was that "a factor of trauma or injury might cause an acceleration of an unkind [malignant] process." On further questioning he said, "As far as we know, on the evidence you present to me in the form of this question, * * * this was an aggravation of a presumed existing condition." In explanation of his answer he expressly predicated it upon an injury to the cancer cells, which would project such cells, or cell groups, into the tissues beyond the area of the growth itself. As noted above, however, no clinical evidence as to such projection ...


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