This is a workmen's compensation appeal, brought by respondent after a finding of 7 1/2% of permanent partial total disability below.
Petitioner had been employed by respondent Mucon Corp. for a period of approximately six years at the time of the alleged manifestation of injury to her back on February 20, 1957. Her job was that of calculation with a slide-rule and micrometer. By way of working accommodations Mrs. Mitchell was provided with a high chair, the seat of which was 27 inches off the ground, and a table, the height thereof being 34 1/2 inches. There was a shelf under the table-top which prevented her from sitting in a position directly facing her work. In order to perform her duties petitioner assumed a position at a right angle to the table with her right side pressed against said table and her legs perched on the rung of the chair. She then twisted the trunk of her body in order to perform her work on the table. On the date in question petitioner alleges a feeling that something pulled loose in her back and a sudden sharp pain. She attempted to alleviate the pain through application of heat and before leaving work reported the incident to an employee of respondent who was identified as the "secretary in the ladies' room." That night at home, while reaching for a newspaper, she suffered sudden, severe pains. The following day, February 21, 1957, petitioner alleges that she reported the incident at work to her foreman. That same day petitioner consulted Dr. Max Novich who had her immediately admitted to the Crippled Children's Hospital, where she remained until March 14, 1957, undergoing treatment for her back. After the treatment was completed, Mrs. Mitchell returned to work at the same job. It is interesting to note that at this time
the aforementioned shelf under the table had been removed and she was now able to perform her duties seated in a position facing said table. Petitioner recited a previous history of back trouble, allegedly due to conditions at work, occurring on July 3, 1956, and necessitating her absence from work for hospitalization and treatment during the subsequent six-week period. Following this she returned to her job at Mucon Corp., where she has remained since.
Dr. Max Novich, petitioner's treating physician, testified as to his original examination, hospitalization and treatment of petitioner. His diagnosis was a low back strain with peripheral neuritis. On cross-examination Dr. Novich stated that a digital movement in adjustment of the slide-rule could result in a muscle tear of the lower back. This was predicated on the interconnection of the muscles of the body and the factor of constant strain due to the position assumed in the employment.
Dr. Pasquale F. Cardinale, a specialist in industrial medicine, was called on behalf of petitioner as an examining physician. On the basis of his examination and the hospital record, Dr. Cardinale diagnosed the condition as a severe lumbosacral strain and estimated 15% of partial total disability. On cross-examination Dr. Cardinale also related petitioner's severe back pain to her digital movements coupled with the twisted position in which she worked.
It was during the recross-examination of Dr. Cardinale that petitioner, over the objection of respondent, was allowed to amend the complaint to include occupational disease as well as the previously alleged accident.
Dr. E. McCarroll, petitioner's family doctor, was called as a witness by respondent. She testified as to various and sundry female disorders, aches and pains for which she had treated petitioner over the years. It was during July of 1956, while Mrs. Mitchell was waiting to enter the hospital for treatment of a female disorder, that Dr. McCarroll took care of a back disorder which arose from an apparent accident. The cause of that accident was not elaborated on by Dr. McCarroll.
Dr. William B. Ein, respondent's medical expert, diagnosed Mrs. Mitchell's condition as a probable lumbosacral strain and estimated disability at 5% of total. Dr. Ein found no connection between petitioner's digital movements and her back condition. Nor did he feel that the twisted position in which petitioner worked was responsible. He had no explanation for petitioner's statement that something gave in her back at work. On cross-examination Dr. Ein, in answer to a hypothetical question, theorized that petitioner had a chronic back condition which recurred spontaneously for many years, marked by periods of pain and discomfort without any untoward cause. The hypothetical question included reference to the incident of July 3, 1956. Dr. Ein attributed the sudden snap in the back to the incident of reaching for a newspaper on the evening of the day of the alleged incident at work (February 20, 1957), rather than to the incident at work itself.
The Deputy Director discounted the theory of Dr. Novich and Dr. Cardinale as to movement of the fingers causing a back strain. While eliminating accident as a basis for recovery, he found that a compensable work-connected condition did exist which caused disability on February 20, 1957. This finding seemingly was based to some extent on the testimony of Dr. Ein who had found a lumbosacral strain in his examination. Although not specifically so stated, the deputy director's finding of 7 1/2% of permanent partial total disability was obviously based on the occupational disease sections of the compensation statute. R.S. 34:15-30 et seq.
At the outset, this court is enabled to summarily dispose of one issue. During the course of the hearing below, petitioner, over the objection of respondent, was permitted to amend her accident complaint to include a count for occupational disease. In the oral argument before this court respondent admitted that counsel below had notice at the pretrial conference before the Deputy Director that occupational disease would be alleged. Respondent has here stipulated ...