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Moore v. Allcast Non-Ferrous Foundry Inc.

Decided: March 15, 1962.


Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.


[73 NJSuper Page 140] This is an appeal by petitioner James Moore from a judgment of the County Court affirming the dismissal of his petition in the Division of Workmen's Compensation. Petitioner's employer, respondent Allcast Non-Ferrous Foundry, Inc., conceded at the Division hearing that petitioner suffered a work-connected left inguinal hernia. Respondent had paid petitioner's medical expenses and had also paid him temporary disability compensation covering a period of nine weeks. The sole issue before the Division and the County Court, as well as on the present appeal

before this court, was whether petitioner sustained any compensable permanent disability. The Division determined that no such disability had been established by the proofs. The County Court on a de novo examination of the record reached the same conclusion.

On May 27, 1959 petitioner, a laborer, suffered the aforesaid hernia while lifting material weighing about 100 pounds. On October 6, 1959 he underwent surgery for the correction of that condition. The operation was performed by Dr. S. Wolfe Emmer, who also treated petitioner postoperatively. Petitioner was discharged from the hospital on October 13, 1959 and released by Dr. Emmer on November 9, 1959.

Petitioner testified that when it rains, about "two inches" of the operative scar "hurts * * * it swells up, it blisters." He further testified that when he returned to work he became employed by a cleaning establishment as a driver of a panel truck, in which work he would "pick up and deliver clothes." He answered negatively a question as to whether that involved "any heavy lifting or any heavy, arduous work." Although he stated that pain interfered with his work once or twice a month, he stated that he was experiencing no discomfort while at the Division hearing.

Dr. Sidney Keats, who examined petitioner on June 16, 1959, prior to the operation, and on November 10, 1959, the day after petitioner was released by Dr. Emmer as aforesaid, testified for petitioner at the hearing in the Division on November 9, 1960. The doctor stated that at the first examination he observed that "the external inguinal ring was dilated. There was a large protrusion through the ring, extending into the scrotum; the mass was reducible." He then estimated "a partial permanent disability of 7 1/2 per cent of total."

Dr. Keats testified that his aforesaid re-examination on November 10, 1959, "revealed a healed incisional scar in the left inguinal area. The external ring was closed. There

was no protrusion through the ring on coughing or straining." As of that time the doctor estimated "a partial permanent disability of 5 per cent of total, with the residual effects of a left herniotomy." The doctor thought the operation was successful "as far as the repair of the hernia" was "concerned." Based on petitioner's then expressed "complaints" and the witness' "clinical findings," Dr. Keats stated that he reached his aforesaid conclusion of petitioner's permanent disability amounting to "5 per cent of total." In further explanation of the basis for his estimate we find the following testimony on Dr. Keats' direct examination:

"Q. Did he [petitioner] give you complaints, Doctor, of pain in the left inguinal area? A. Yes, sir.

Q. About the area of the scar? A. Yes, sir.

Q. And did he tell you that when it rains, the cut swells up and blisters and itches? A. No, sir. He told me, at one occasion, that there was swelling, but that was when he had the hernia.

Q. Well, is your estimate of disability based in whole or in part upon the complaints? A. I would say the estimate of disability is based upon his complaints as related to the structural changes resulting from the hernia repair."

On cross-examination Dr. Keats stated that at the time of his aforesaid examination on November 10, 1959, petitioner "had the result of a hernia repair in the left inguinal area as related to the structural changes." In response to interrogation as to whether there was "anything different about this scar than the normal case where there's been a repair of a hernia," he said: "Actually, there is no normal case. In order to effect a repair, you must alter the structure about the left inguinal area."

We find the following immediately thereafter:

"Q. But that is, Doctor, what happens in every case where you operate on for hernia. A That's correct.

Q. And insofar as this case is concerned, was there anything different about the procedures or what you could observe as a result of the operation than in any other normal case? A. Well, I would say that, as I stated before, that if this Petitioner has persistent complaints in his left inguinal area, then there is a difference, because in most hernia repairs there is [ sic ] no persistent complaints.

Q. The complaints, in so far as the Petitioner is concerned, are subjective, are they ...

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