Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Nathaniel P. Joy filed a petition in the Division of Workmen's Compensation, seeking an award under R.S. 34:15-7 et seq. for permanent injuries resulting from a cerebral hemorrhage allegedly precipitated by his activities while in respondent's employ. After the Division had entered an award in favor of petitioner, respondent filed an appeal to the Mercer County Court, pursuant to R.R. 5:2-5. The County Court, on trial de novo based on the record below, affirmed the award for 100 per cent permanent and total disability, from which the employer appeals.
Petitioner was 62 years of age when his disabling injury occurred. He suffered from hypertension and had experienced a mild stroke in 1954. He had been in respondent's employ for roughly 40 years, starting out as a "weight master" and handy man, and working his way up to the position of field erector, a post he held for the last 25 years of his employment. As field erector, he supervised the erection of pipes, valves, and gas and hydraulic machinery at the plant sites of respondent's customers. Joy could thus expect to be sent to jobs at distant places throughout the United States and Canada, for periods of from one to eight weeks. When on these assignments, his transportation, hotel, board and laundry expenses were paid by respondent. In addition, of course, Joy received his regular salary plus overtime, and extra travel time on trips of any considerable distance. He was normally provided with local labor at the job site; his responsibility was to see that the machines were safely and properly erected and placed in operating condition.
In early April of 1957, petitioner was notified by his employer to report to Alpena, Michigan, to supervise the erection of a large machine, valued at $425,000. Joy began work in Alpena on April 8. The job was difficult, taking place in a roofless building. The weather was extremely cold. It rained or snowed constantly, increasing the danger that the machine would rust. In addition, Joy had labor troubles with the local workmen.
Toward the end of May, with the machine about 70 per cent completed, petitioner was called back to respondent's plant in Florence, New Jersey, to help in the completion of a second machine destined for Alpena. He worked in Florence until the middle of June, at which time he was ordered back to Alpena. After a weekend in which he "got some of [his] things straightened out," Joy reported back to Alpena, where he resumed his work on the morning of June 25. Both the weather and the working conditions continued to be miserable.
At the end of June or the beginning of July, the second machine, also valued in excess of $400,000, arrived from Florence. Petitioner was then required to supervise the erection of two machines, thus doubling his difficulties. Petitioner complained of "the type of help that you get in that part of the country," and noted that "you are really receiving material and running a job that ordinarily in the plant four or five men would be running." He further testified that the cranes available were not really capable of handling the 50-ton castings being lifted by them, thus creating a hazard "any time you pick up something over people's heads * * *."
These conditions continued for as long as petitioner worked on the job. He described the job as "one of the tough ones," and added, "I have had them down below zero and they wasn't (sic) as tough as this one."
On the afternoon of July 30, petitioner was helping to unload a 55-ton casting from a well car. The casting was tied down by steel rods, and as a worker was burning off the rods, one of them -- about an inch and a quarter in diameter, and about 12 feet long, and weighing roughly 110 pounds -- flew off the edge of the car and landed on Joy's right instep. The foot was badly bruised, swelled up, and was painful to step on. Medical aid was not immediately available, and petitioner decided to forego such attention. He remained at his job for the rest of the day, hobbling around as best he could. In the evening, at his room at the local hotel, he soaked the foot in Epsom salts.
On the following day, Joy went to work as usual. He wore a brown canvas shoe, partially cut out, on his right foot, and hobbled back and forth between the two machine sites. By the end of the day, his foot was black and blue, and still swollen. He soaked the foot again, and retired at 9 P.M.
The next morning, August 1, 1957, Joy awoke at a quarter to six. As he proceeded to the bathroom, he felt pain in the calf of his left leg, and discovered that he could not support himself on that leg. Medical aid was summoned, and a diagnosis was made of cerebral hemorrhage, producing aspastic left hemiparesis. Petitioner is almost completely paralyzed on his left side.
In essence, the deputy director, as upheld by the County Court, concluded that the following finding was dictated by the evidence: The cumulative effect of petitioner's work during June and July of 1957, involving stress, strain and worry, including his foot injury, aggravated his pre-existing hypertension and precipitated the cerebral vascular injury which occurred on the early morning of August 1, 1957.
Our inquiry, while broad in the sense that we must make the ultimate determination as to whether petitioner's injury is compensable, R.S. 34:15-1 et seq. , may be focused more precisely upon respondent's two major contentions: (1) that petitioner did not suffer an injury "by accident" within the intendment of the applicable statute, R.S. 34:15-7; and (2) that petitioner has not sufficiently established that his injury was work-connected, i.e. , that it "[arose] out of and in the course of his employment." Ibid.
While the burden is upon the petitioner to prove the essentials of his claim by a preponderance of the probabilities, Ciuba v. Irvington Varnish & Insulator Co. , 27 N.J. 127, 138 (1958), the specific issue of whether the injury was "by accident" is subject to a more balanced allocation of evidentiary responsibility. Spindler v. Universal Claim Corp. , 11 N.J. 34, 38 (1952). Where expert proof or circumstances warrant an inference that an injury is work-connected,
the burden of showing that some other cause, for which the employer is not responsible, produced the injury is upon the respondent. The burden of production, and perhaps even of persuasion, is upon the employer to show that an apparently work-connected injury is the result of the employee's physical condition, for which the employer is not legally responsible. Atchison v. Colgate & Co. , 3 N.J. Misc. 451, 452 (Sup. Ct.), affirmed 102 N.J.L. 425 (E. & A. 1925); Lilly v. Todd , 15 N.J. Super. 1, 6 (App. Div. 1951); Walsh v. Kotler , 43 N.J. Super. 139, 151 (Cty. Ct. 1956), affirmed 46 N.J. Super. 206 (App. Div. 1957).
In the sense of the statute, an "accident" is an "unlooked for mishap or untoward event which is not expected or designed." Bryant v. Fissell , 84 N.J.L. 72, 76 (Sup. Ct. 1913). Both in our statute and in its English prototype, it has been given its ordinary, popular meaning, and "injury by accident" means nothing more than "accidental injury." Ciuba v. Irvington Varnish & Insulator Co., supra , at p. 135. Clover, Clayton & Co., Ltd. v. Hughes (1910) A.C. 242. For an injury to be "accidental," it need not result from a particular traumatic force. Bollinger v. Wagaraw Building Supply Co. , 122 N.J.L. 512, 518 (E. & A. 1939). Excluded from the category of "accident" are only those injuries solely the result of disease (other than "compensable occupational disease," see N.J.S.A. 34:15-31) or of design on the part of the petitioner. Bollinger v. Wagaraw Building Supply Co., supra , at p. 519.
An "accident" need not be a specific factual event, involving an unexpected mishap during the employee's performance of his duties. It may constitute a malfunctioning of the body itself, such as the breaking of a blood vessel, or the tearing of a ligament, if caused or accelerated by the doing of the work. Cf. Ciuba v. Irvington Varnish & Insulator Co., supra , at p. 136. Thus, if either the cause of the injury was of an ...