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Roth v. Board of Trustees

Decided: March 17, 1958.

MARIE S. ROTH, PLAINTIFF-APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES RETIREMENT SYSTEM OF NEW JERSEY, DEFENDANT-RESPONDENT



Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.

Price

This is an appeal from a determination by the defendant Board of Trustees, Public Employees Retirement System of New Jersey, denying accidental death benefits under N.J.S.A. 43:15 A -6 et seq. to Marie S. Roth, appellant and widow of decedent Edward Harold Roth.

The applicable statute (N.J.S.A. 43:15 A -49) is as follows:

"Upon the death of a member in active service as a result of an accident arising out of and in the course of his employment and not as the result of his willful negligence, an accident death benefit shall be payable, if a report, in a form acceptable to the Board of Trustees, of the accident is filed in the office of the retirement system within 60 days next following the accident, but the board of trustees may waive such time limit, for a reasonable period, if in the judgment of the board the circumstances warrant such action. Evidence must be submitted to the board of trustees proving that the natural and proximate cause of his death was an accident arising out of and in the course of employment at some definite time and place.

"No such application shall be valid or acted upon unless it is filed in the office of the retirement system within 2 years of the date of the accident; but the retirement board may waive such time limit, for a reasonable period, if in the judgment of the board the circumstances warrant such action."

On February 18, 1955 decedent, an employee of the Department of Conservation and Economic Development and

a member of the defendant system, was performing his work at the Rockport Game Farm in Hackettstown, New Jersey. He was removing shingles from the roof of a corn crib. To accomplish this work he was standing on a bale of wire inside the corn crib and striking the shingles with a "2 x 4." While so engaged the "2 x 4" struck a rafter or beam identified as a "nailer" which apparently failed to yield to the force of the blow. As a result his arm and shoulder suffered a trauma resulting from the force used in striking the unyielding rafter. He "turned white," "hollered," jumped from the bale of wire and "grabbed" his right arm and shoulder with his left hand. He did not work the remainder of the day or the following day. He complained of "a lot of pain" to a co-worker during the day of the accident who testified that he observed that decedent's right arm was red from the wrist to a point above the elbow where further view of the upper arm was prevented by decedent's rolled-up shirt sleeve.

Decedent apparently did not consider the injury significant as to any serious permanent result and failed to report the accident to the office of the retirement system within the statutory 60-day period. He told the Superintendent of Wild Life Management about the accident on March 9, 1955 and from time to time between March 9, 1955 and December 12, 1956 complained to the superintendent of soreness in his right arm. As a matter of fact, a formal report of the happening of the accident was not filed until December 12, 1956, the date of decedent's death, and then by the aforesaid superintendent. A superior of the superintendent was also told of the accident in March 1955, but made no formal report of it.

Decedent's arm continued to be painful, however, and commencing approximately six months after the happening of the accident he consulted successively over a substantial period of time, a medical doctor, an osteopathic physician (at which time his arm was badly swollen), and a chiropractor, all of whom apparently considered that decedent was suffering from bursitis and treated him therefor. Still

later he consulted another medical doctor who tentatively diagnosed the condition as Paget's disease but, believing that there might be a malignancy present, recommended further study. X-ray and laboratory studies followed. In November 1956 he was hospitalized, at which time it was ascertained that he was suffering from a sarcoma of the right humerus. He underwent radical surgery. His right arm, shoulder blade and collarbone were removed. He died 12 days thereafter, December 12, 1956.

The principal issue presented by this appeal is a challenge of the propriety of defendant's determination that plaintiff failed to sustain the burden of proof with respect to the accident on February 18, 1955 and its claimed causal connection with the death of decedent. There can be no doubt that Roth was injured February 18, 1955 in a work-connected accident. The basic inquiry was whether decedent's death from sarcoma almost 22 months thereafter was causally related to the injury sustained as aforesaid.

Appellant contends that the statute is remedial and that, in considering whether compensation should be paid for an injury or death of an employee who sustained an accident in the course of his employment, reliance should be placed on comparable decisions under the Workmen's Compensation Act; that this Court, in its examination of the evidence before the administrative tribunal, should not be ...


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