Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Both the Division of Workmen's Compensation and the Union County Court on appeal determined this workmen's compensation case adversely to the petitioning employee. The claim was for a hernia alleged in the petition to have occurred November 8, 1955 at the respondent's plant at Linden.
Petitioner was hired by respondent on November 8, 1955. The previous day he had received and passed a pre-employment physical examination. His job was to lift heavy fenders from conveyors and put them on other conveyors. He testified that on his very first day of work, while picking up fenders, he "felt sharp pains in [his] groin." He did not
stop work then but told the foreman that the job was too heavy for him and that he "didn't feel good."
Petitioner testified on cross-examination that on the night of November 8 he noticed a lump in his left groin and was doubled up with severe pain; that he then knew "there was something wrong there then"; and that the lump would reappear whenever he worked. On November 10 he went to the company nurse but did not tell her about the pains in his groin, merely that he had a headache. The pass signed by the foreman stated that petitioner had a headache. The nurse gave him an aspirin. On redirect examination he intimated that embarrassment prevented him from disclosing the nature of his symptoms to the nurse. Despite his complaint concerning heavy work, he was told by the foreman that there was no other job for him to do; so he continued working the remainder of the week, that is, until November 11, when he quit.
Petitioner endeavored to find employment at Dugan Brothers on November 14. Dugan Brothers' doctor told him to see his own doctor. The next day he went to his own doctor, Dr. Giannotto, who, after examination, advised him that he had a hernia. The following day, November 16, petitioner went to see respondent's plant doctor, Dr. Young, and told him that he "got hurt on the job," but the doctor, after an examination, told him that he had no hernia. He returned to the Dugans' physician, who re-examined him and reaffirmed the conclusion of hernia. Petitioner gave testimony establishing that he still has a hernia and wears a truss while working. On redirect examination he expressly testified that he did not know he had a hernia until he saw his own doctor on November 15.
It is conceded by respondent for the purposes of this appeal that petitioner sustained a hernia on November 8 which was causally related to his employment by respondent and that notice was given to the respondent on petitioner's visit to the plant doctor on November 16.
At the close of the petitioner's testimony and before the introduction of any medical proofs the Deputy Director
dismissed the petition on motion on the sole ground that petitioner failed to give notice to his employer within the period prescribed by N.J.S.A. 34:15-12(c)(23) (formerly section 34:15-12(x)); i.e. , "within 48 hours after the occurrence of the hernia." The basis for the conclusion was stated as follows:
"Whether he knew that he had an hernia or not, he was put on notice that something was wrong when he had that pain in the groin and specially when the lump appeared on the night of the eighth of November. Whether he knew or did not know there was an hernia is immaterial. The Statute uses the word ' occurrence ' rather than 'knowledge.' The petition will, therefore, have to be dismissed."
The County Court concurred in the dismissal of the petition on two grounds: (a) that petitioner's testimony did not credibly establish an accidental hernia connected with the employment, and (b) that, assuming petitioner sustained a traumatic hernia,
"he knew or had reason to know of it on the night of November 8, 1955, but on any reasonable interpretation of the evidence and any reasonable view of human behavior, consistent with his duty to give notice, he failed to comply with the ...