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De Asio v. City of Bayonne

Decided: December 3, 1959.

NICHOLAS DE ASIO, PETITIONER-APPELLANT,
v.
CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT-RESPONDENT



On appeal from the Division of Workmen's Compensation.

Reeves, J.c.c.

Reeves

The Division of Workmen's Compensation, while finding that petitioner was totally and permanently disabled as a result of injuries received by him in an accident arising out of and in the course of his employment, denied an award on the sole ground that the petition had not been filed within time. Petitioner appeals.

This accident occurred on February 12, 1954. The petition was not filed until March 16, 1956, 2 years and 32 days after the happening thereof.

There is little or no substantial dispute as to the material facts involved. Petitioner Nicholas DeAsio, a fireman, then serving as an acting captain in the employ of respondent City of Bayonne, at 8:38 P.M. on the night of February 12, 1954, in sub-freezing weather, attended a fire at Acme Market, 266 Broadway, Bayonne, New Jersey. This fire required a great deal of water to extinguish. Petitioner in the performance of his duties was soaked to the skin, and because of the extreme cold his body and clothing were covered with icicles. In all, he was exposed to the water, the elements and the smoke of a smoldering fire for a period of over two hours during which time he started coughing and spitting up phlegm. On the return trip to his firehouse he developed severe chills and shivering. He participated in the recommissioning of his engine, changed his clothing, and then because of these symptoms went directly to bed.

Petitioner, still on the same shift, remained in bed until 2:09 A.M. of the morning of February 13, 1954, when he responded to another alarm at 9 West 8th Street, Bayonne, New Jersey. Because of his continued coughing, chills and shivering, he was taken from the scene of this fire by a

fellow captain to a nearby restaurant where he was given two or three cups of coffee without beneficial effect. Upon his return to the firehouse from this second fire, because of his condition he again went to bed, covering himself with extra blankets. He remained in bed until his shift was ended at 8:00 A.M. on February 13, 1954.

Petitioner, before leaving for home at 8:00 A.M. on February 13, 1954, made the following notation in the captain's log book with reference to the Acme fire: "Act. Capt. DeAsio very bad wetting at fire," and in the desk journal made the following entry: "Act. Capt. DeAsio very bad wetting."

From February 12, 1954 on, petitioner's health continued to deteriorate. For the next 48 hours, which were normally his two days off, he was confined to his bed at home except for a visit made by him on February 14, 1954 to the office of Dr. Frieman, who continued to treat him until the early part of March 1954. Petitioner returned to work on February 15, 1954 and continued to report for duty until March 11, 1954, but during this period, whether at home or at the fire house, he spent most of his time in bed. When at the firehouse his co-workers regularly massaged him and applied a heat lamp to his body. His illness progressed, with body pains and fever, until on March 11, 1954 he collapsed with severe pains over the upper anterior and right chest wall. On March 15, 1954 he was hospitalized by his then physician, Dr. Grieco, with complaints of pain in the right chest with chills and fever, diagnosis: "Pneumonia right lower lobe." By his own action he discharged himself from the hospital on April 3, 1954, condition: "unimproved," and returned to his home. Petitioner did not respond to treatment at home and was again admitted to the hospital on April 12, 1954, diagnosis: "right empyema." He was discharged on April 21, 1954, condition: "improved." He entered the hospital for the third time on June 7, 1954, diagnosis: "right plural effusion," and remained there until June 9, 1954, when he was discharged, condition:

"improved." The persistence of his affliction was such that he remained away from duty from March 11, 1954 to July 13, 1955, when he was ordered to return to work and was given light duty such as answering the telephone. Petitioner continued performing said light duty for several months, when he suffered a relapse, remaining away from work until February 1, 1957, on which date he was again ordered to return to work, which he did, and was again assigned to light duty. Petitioner was treated by his own physicians, Dr. Frieman, since deceased, and Dr. Grieco, at regular intervals from February 14, 1954 up to and including January 10, 1956.

At the time of the argument of this appeal the attorneys for both parties informed the court that petitioner was again on sick leave, with the same complaints of shortness of breath, pains ...


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