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Dunay v. International Smelting & Refining Co.

Decided: March 29, 1960.

JOHN A. DUNAY, PETITIONER-RESPONDENT,
v.
INTERNATIONAL SMELTING & REFINING CO., RESPONDENT-APPELLANT



On appeal from Division of Workmen's Compensation. Determination of facts and judgment.

Kalteissen, J.c.c. (temporarily assigned).

Kalteissen

This is an appeal from a final judgment of the Department of Labor and Industry, Division of Workmen's Compensation, in favor of petitioner John A. Dunay against the respondent International Smelting and Refining Co. The Deputy Director found that petitioner suffered a compensable back injury in December 1950, and awarded compensation accordingly.

Respondent urges upon this appeal that (1) petitioner did not prove by a preponderance of the credible evidence that he sustained a compensable back injury in 1950, and (2) petitioner's claim is barred by the statute of limitations under R.S. 34:15-51.

It is the duty of the reviewing court in an appeal from the Workmen's Compensation Division to weigh the evidence and determine whether the claimant has sustained the burden of proof of an accident arising out of and in the course of his employment by a preponderance of the evidence. Due regard shall be given to the Deputy Director's opinion of the credibility of the witnesses. Yeomans v.

City of Jersey City , 27 N.J. 496, 511 (1958); Ricciardi v. Marcalus Manufacturing Co. , 26 N.J. 445 (1958); Russo v. United States Trucking Corporation , 26 N.J. 430, 435 (1958).

Upon an independent review of the record below, the court is of the opinion that petitioner has proved an accident arising out of and in the course of his employment by a preponderance of the evidence.

The petitioner testified that in the latter part of 1950 he was employed by respondent as a brakeman on a narrow gauge railroad. One night during that period, while working on the 11:00 P.M. to 7:00 A.M. shift, petitioner bent down to throw a switch on a railroad track and felt a snap in his back. At first he could not straighten up, but later he was able to complete his job. According to the petitioner, the switch was frozen. After petitioner completed his job he sat down on a bench to eat and was not able to rise.

The next day the plant doctor was called to petitioner's home to treat petitioner for his back injury. The treatments continued for four or five weeks, during which time petitioner was confined to his bed. Subsequent treatments were prescribed by the company physicians after petitioner returned to work. In 1955 and 1956 petitioner underwent surgery on the lower part of his back. Petitioner had been referred to the operating surgeon, Dr. Schwartz, by the plant physician.

Petitioner's version of the accident was corroborated by a fellow employee, Mike Yenchak, who was the engineer of the train on which petitioner was the brakeman.

Respondent argues that the testimony of the petitioner and Mike Yenchak was not credible. The court is inclined to adopt the express opinion of the Deputy Director who was "convinced of the truthfulness of their testimony."

The credible testimony that petitioner snapped his back while throwing a railroad switch and that he was immediately confined to bed for four or five weeks leads the court to find that ...


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