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Mangieri v. Spring Tool Co.

Decided: June 6, 1960.

GIULIO MANGIERI, PETITIONER-APPELLANT,
v.
SPRING TOOL CO., RESPONDENT-APPELLEE



Barger, J.c.c.

Barger

This is a workmen's compensation appeal. The petition was dismissed in the Division because it was not timely filed and the petitioner appeals.

It is stipulated that the petitioner on March 10, 1955 was employed by the respondent at a weekly wage of $66 and therefore would be entitled under a determination in his favor to a compensation rate of $30 a week.

The petitioner testified that in May of 1955, the record otherwise establishing the date as March 10, 1955, he was delivering, in his employment as a truck driver for the respondent, an exceptionally heavy steel mold at a location in Hoboken, New Jersey. In view of the size and weight of the mold three men, employed by the company to which the mold was being delivered, were assisting him in unloading the mold from the truck bed onto a delivery platform and it was being lifted four or five inches. The mold is described generally as a heavy steel mold, however, no detailed description or estimate of its weight is indicated by the record. At the time the petitioner, assisted by the other three men, was unloading the mold from the truck, and while lifting it he felt something snap in his back and experienced a severe sharp pain in the lower left region of the back and he could not straighten up. Present at the time and observing the unloading of the mold was a person described by the petitioner as one of the bosses or partners of the respondent company, a Mr. Stephen Kucserka.

The petitioner could not recall any medical treatment on the day of the accident; however, the record indicates that

he did see Dr. McLaughlin, the respondent's physician, on the date of the accident and for a period from that date to March 25, 1955, and almost on a daily basis during this period. He received diathermy and heat treatments about twice a week and a corset-type belt was prescribed. The petitioner wore the belt until about January 11, 1956, and would from time to time have pain in the lower back and experience difficulty in straightening up. It is apparent from the evidence that the petitioner suffered an injury to the lumbar muscles, resulting in a myositis, with a scoliosis to the left, and which was superimposed, as an aggravation thereof, upon previous back pathology dating from about 1946.

On December 28, 1955 the petitioner suffered a recurrent myositis of the lumbar muscles of the back, at which time he was wearing the corset-type belt which had been prescribed by Dr. McLaughlin. Some time after that date Dr. McLaughlin prescribed a new brace. A mold was made of petitioner's back and this brace secured from the supplier on January 11, 1956. Petitioner then returned to see Dr. McLaughlin on January 13, 1956 so that the doctor could check the fitting of this brace. At this visit the petitioner was given specific instructions by Dr. McLaughlin to wear the new brace faithfully for a period of about six months, except when in bed, and then to gradually dispense with its use except when doing other than light work. The brace was paid for by the respondent, and the petitioner testified that he faithfully wore the brace for the six-month period mentioned, and thereafter occasionally. The visit on January 13, 1956 to Dr. McLaughlin was the last visitation of the petitioner to that physician.

The petitioner continued to work for the respondent until January 10, 1958, without incident in the employment, although he did testify that he lost a day occasionally and that when hard work was involved he would wear the brace, although for the period of his employment after the accident he was generally assigned light duties.

On January 11, 1958, while he was wearing the brace, and not in the course of his employment, he bent down to unloosen some snow chains on his car and he was unable to rise because of acute pain. He was at that time assisted to his home and his wife called a Dr. Schultz, recommended by a friend. Dr. Schultz recommended his admission to Overlook Hospital and he was admitted on January 27, 1958, and thereafter Dr. Schultz performed a spinal fusion. Petitioner further testified that before being admitted to the hospital he visited the New Jersey Manufacturers Insurance Company Clinic in Hillside, New Jersey, and informed someone at the clinic that an operation was needed upon the recommendation of Dr. Schultz. He requested help, which was refused. The insurance company mentioned was the compensation carrier of the respondent. The petitioner was released by Dr. Schultz for return to employment in May of 1958.

The petitioner now complains of a pulling sensation in the lower left region of the back when standing for any extended period of time, and upon excessive bending the same sensation occurs with severe pain. Upon arising in the morning there is a general stiffness in the lower back, and in performing any heavy work the brace ...


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