Kilkenny, Herbert and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
This is a workmen's compensation case wherein the petitioner, Benjamin Schulman, sought total disability benefits from the One Per Cent Fund (N.J.S.A. 34:15-95). The then Acting Commissioner of Labor and Industry dismissed plaintiff's petition on the ground that the claim was barred by N.J.S.A. 34:15-95(c) and (d). The dismissal was affirmed by the Essex County Court, upon a finding that the factual situation precluded recovery under N.J.S.A. 34:15-95(c). Petitioner appeals therefrom.
Though petitioner, a former truck driver, is now gainfully employed doing stockroom work, handling and receiving
shipping, and earning $70 per week, it is conceded that he is now totally and permanently disabled within the meaning of our Workmen's Compensation Law.
While engaged in his previous occupation, petitioner sustained two compensable accidents. The first occurred on August 11, 1956, resulting in an injury or strain of the lower right abdominal wall and inguinal region, for which the petitioner was awarded 2 1/2% of total permanent disability. On December 2, 1957 petitioner was injured while jumping onto the tailboard of a truck. The injury was diagnosed as a strain of the right thigh muscles, and petitioner was awarded therefor 15% disability of the right leg.
Prior to these compensable accidents, petitioner had been suffering from a number of ailments. These included hemorrhoids and a hemorrhoidectomy, surgical repair of an anal fissure, weakness of the left eye, lues, nervousness and excitability. The disabilities, if any, produced by these conditions went undefined. Also, during military service, he had sustained a bullet wound in his right leg and a shrapnel wound involving the right shoulder. For the latter he has been receiving a veteran's pension of $33 per month, based on a disability of 20% of the right shoulder. No veteran's compensation has been awarded for the leg injury.
Petitioner also had a brain tumor, the onset of which probably antedated his last compensable accident on December 2, 1957, though its manifestation and disabling effect, as hereinafter noted, followed that happening. It is conceded that the formation of this brain tumor was not caused by either compensable accident; and there is no contention that its progress or development was aggravated, activated, or accelerated thereby.
Sometime after the December 2, 1957 compensable accident, petitioner started to limp. In order to determine the cause, he entered a Veterans Administration Hospital on February 17, 1958. There, he complained of limping in the right leg "for some 2 1/2 months," a numbness in part of the right foot for a year, headaches about five times per
week, numbness of the right leg, and a weakness of the muscles of the leg preventing him from walking on his toes and affecting his ability to put his foot down without slapping it on the floor. On March 27, 1958 he was discharged with a diagnosis of "multiple sclerosis early."
Disturbed by that diagnosis, petitioner went thereafter to Columbia-Presbyterian Medical Center where certain findings indicated the need of a "work up" for a possible brain tumor. He was so advised but failed to keep an appointment for his admission for that purpose. Later, on October 8, 1958, he did enter the hospital and two days later surgery was performed for the removal of a brain tumor. Petitioner's condition has slowly deteriorated to the point where he now finds it extremely difficult to walk, cannot run at all, and at times is unable to co-ordinate his thoughts with his speech. The petitioner is presently totally and permanently disabled.
After reviewing the record, the County Court found that "the onset of the brain tumor antedated the final compensable accident * * * and that it was the progress of the tumor subsequent to the accident that produced total and permanent disability." The court also noted that the "greatest factor in the disability picture is the orthopedic and neurological aftermath of the development and surgical removal of a brain tumor." On this basis, it concluded that the legal situation created by the facts and circumstances of the case clearly brought it within the exclusionary provisions of N.J.S.A. 34:15-95(c).
Dr. Vincent J. Riggs, a neurologist and psychiatrist, testifying for petitioner, stated that he examined petitioner on February 13, 1959, and found a paralysis due to a brain tumor. On June 15, 1960 he examined petitioner again and found him suffering from a right parietal hemiplegia with a disability of 100 per cent of total. He found that petitioner suffered from conditions orthopedic in nature, which were separate factors independent of the hemiplegia. In his opinion, the petitioner was totally disabled from all
factors, but the effects of the brain tumor were the major cause of his disability.
Dr. Phillip Willner, an orthopod, petitioner's other medical witness, examined petitioner in December of 1959 and felt that because of the hemiplegia, petitioner had an orthopedic disability of 50 per cent of total; and that ...