Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
The petitioner was granted an award in the Workmen's Compensation Division; the County Court affirmed, and respondent appeals.
The proceeding was brought under the occupational disease sections of the Workmen's Compensation Act, N.J.S.A. 34:15-30 et seq. , petitioner claiming that as a result of his employment by respondent he had contracted "lead poisoning."
The central question litigated at every stage of the proceeding has been, and remains: is the petitioner suffering from lead poisoning? This broad, yet crucial issue has been bitterly contested, both sides presenting respectable medical evidence to support the pros and cons of the situation. But, in the welter of medical disputation, certain facts indisputably appear from which the probable existence of lead intoxication of petitioner's system could be concluded: (1) petitioner was exposed to lead in solid and molten form and was exposed to its fumes during the melting process, (2) petitioner's symptomatology was consistent
with lead poisoning, and (3) he had ingested lead in some degree as was disclosed by urinalysis.
In finding for petitioner the deputy director placed reliance on the expression in Aromando v. Rubin Bros. Drug Sales Co. , 47 N.J. Super. 286, 293 (App. Div. 1957), certif. denied 26 N.J. 244 (1958), that:
"In weighing the petitioner's proofs as against the employer's proofs, there must be thrown into the scales the general tendency of the law to apply the Compensation Act, N.J.S.A. 34:15-1 et seq. , in the employee's favor when in doubt."
This observation is frequently made the basis of the argument that in a "close" case, where medical opinion of causal connection between "accident" and "disability" is in sharp and seemingly insolvable dispute, the sufficiency of the evidence in petitioner's favor is weighted by the accepted concept that the statute, being social and remedial legislation, is to be liberally construed in favor of the workman.
Although the highest courts of our State, both present and past, have steadfastly adhered to the liberal construction rule, each has been careful to point out that the rule is not a substitute for legal evidence. See Giles v. W.E. Beverage Corp. , 133 N.J.L. 137 (Sup. Ct. 1945), affirmed 134 N.J.L. 234 (E. & A. 1946); Bowen v. Olesky , 37 N.J. Super. 19 (App. Div. 1955), affirmed 20 N.J. 520 (1956). On the contrary, our courts have uniformly held that in a workmen's compensation proceeding the claimant has the burden of proving his case by a preponderance of probabilities. Ciuba v. Irvington Varnish & Insulator Co. , 27 N.J. 127, 140 (1958). In this respect his burden is identical with that borne by a plaintiff in any other civil proceeding. Mahoney v. Nitroform Co. , 36 N.J. Super. 116, 125 (App. Div. 1955), reversed on other grounds 20 N.J. 499 (1956).
The idea that Aromando, supra , departed from these established rules is untenable. In the first place it was not within the authority of this court, an intermediate appellate
tribunal, to impair traditional substantive rights previously defined by the highest courts of our State -- as the eminent judges of the court undoubtedly knew. Secondly, although Aromando has since been cited with approval by the Supreme Court, in each instance it has been noted as authority for a principle other than that under discussion. See McClain v. Woodbury Bd. of Education , 30 N.J. 567, 571, 576 (1959). The same is likewise true of subsequent decisions of this court. See Dudley v. Victor Lynn Lines, Inc. , 48 N.J. Super. 457 (App. Div. 1958), ...