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Kolakowski v. Thomas Manufacturing Corp.

Decided: June 29, 1965.


Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.


On October 21, 1957 Edward Pino suffered an injury to the right testicle while at work. Embryonal carcinoma (cancer) developed in the testicle and, on January 31, 1958, it was excised. Thereafter, from February 20 to April 28, 1958 he was subjected to 47 treatments of deep x-ray radiation therapy. He died on September 25, 1960.

Prior to his death, decedent filed a claim for workmen's compensation. At the hearing thereon, held on March 26,

1959, the employer stipulated that the carcinoma had been activated by the trauma and was causally related to the work accident. An award was entered on April 10, 1959 for loss of a testicle and for neurosis, and for payment of all medical and hospital expenses, including x-ray therapy. Decedent's attorney stipulated there was no longer any cancer present on the hearing date. No reference was made to sterility as a basis for compensation.

Thereafter, decedent himself filed a claim for increased disability due to sterility. This petition had not yet been heard when he died. In addition, separate petitions claiming dependency death benefits were filed on behalf of decedent's illegitimate children, Marianne and William Pino, and his legitimate children, Peter and Michael, claiming death was caused by radiation treatment. All the petitions were consolidated for trial in the Division.

Decedent's wife, Mrs. Amariera, divorced him in 1953. During their marriage, two children were born: Peter in 1947, and Michael in 1952. Prior to the divorce, Mrs. Amariera twice obtained orders in New York to support the children. She remarried in 1953, within a month after the divorce. Decedent last gave her support money two months after the divorce. Mr. Amariera supports her and the children, and though the children were never legally adopted they go to school under the name Amariera.

Decedent lived with Anne Marie Kolakowski from 1956 until his death though not married, during which time he supported her and his illegitimate children: Marianne, born July 28, 1957, and William, born August 11, 1958.

The judge of compensation held that petitioners had, by a preponderance of the credible proofs, shown that the sterility and death of Edward Pino were due to the radiation injury, and were causally related to the accident and the radiation therapy; and that all four children were dependents of decedent and entitled to dependency death benefits. In addition, he held that the legitimate children were entitled to the benefits for the increased disability due to sterility.

Upon appeal, the County Court reversed. It held that the death was not due to the radiation treatments and therefore was not compensable, and, although it found the sterility was due to the treatments, decedent became sterile prior to the hearing upon his original petition and therefore there was no "increased disability." The County Court therefore did not decide the questions of dependency and rate of compensation. Petitioners appeal.

We appreciate that this is an appeal from the findings of the County Court and that we must "accord determinative weight in the first instance to [its] findings * * * and not those of the deputy director whom it reversed." Gibson v. Todd Shipyard Corp., 48 N.J. Super. 535, 536 (App. Div. 1958). Close v. Kordulak Bros., 44 N.J. 589, 210 A. 2 d 753 (1965), instructs us that "the standard to govern appellate intervention with respect thereto is * * * 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Applying those rules to the evidence in the case at bar, we find that the judgment of the County Court must be reversed and that of the judge of compensation reinstated.

Anne Marie Kolakowski testified that during the x-ray treatments decedent became ill with vomiting and diarrhea, which he never had before; there were sections of burning on his body on which she put sulfa powder at Dr. Ibranyi's directions; and the scarring from the burns never went away.

Dr. Gustav L. Ibranyi was the decedent's "family" physician. Judge of Compensation Prioletta summarized his testimony, accurately, we think, as follows:

"We must consider the testimony of Dr. Ibranyi, who was the treating doctor in this case originally, and continued to be the treating doctor up to the date of the death of Mr. Edward Pino. Dr. Ibranyi testified that, following the radiation therapy, Edward Pino developed severe first and second degree burns from the X-ray to his entire abdominal wall and the burns required extensive treatment * * *.

* * * the burns took three months to heal * * * subsequent to the termination of radiation therapy, he saw Mr. Edward Pino regularly up to the date of his death, when he treated him for weakness, tiredness, nausea, severe nervousness, abdominal cramps, and at times, diarrhea. Dr. Ibranyi saw Mr. Edward Pino more or less regularly up to July 7, 1960, and did not see him until he had him admitted to the hospital on September 15, 1960.

Dr. Ibranyi expressed the opinion that the complaints of nausea and abdominal cramps and diarrhea were directly related to the radiation therapy, in view of the fact of the severe burns, which he described."

Dr. Ibranyi said that when he operated on decedent he found a generalized peritonitis; that the germs found in the peritoneal cavity, E coli, are normally only found in the intestines, and their presence there was, in his opinion, the result of the radiation. On cross-examination, Dr. Ibranyi admitted that no perforation of the bowel or intestine was found, but said that germs were able to spread from the intestine into the abdominal cavity as a result of the scarrings which lowered resistance in the intestinal walls and let seepage through in those areas. This process of seepage is called diapedesis.

Dr. Leonard S. Ellenbogen, a specialist in radiology and oncology, did not examine decedent but was sent Pino's complete medical file by petitioners' attorney. He testified that, while the radiation therapy given decedent was the proper postsurgical treatment, it "caused a radiation enteritis in and adjacent to the areas of treatment which resulted in the gastro-intestinal symptoms described * * * the radiation enteritis * * * of the ulcerative type and * * * was the basis for the development of the acute peritonitis which was the terminal event in the whole series of events leading to the death of this individual." He said his opinion as to causal relation was not diminished by the fact the autopsy did not disclose a perforation because "an extensive ulcerative enteritis was found, almost complete submucosa was found * * * Its permeability, its leakiness, increased." The fact that radiation therapy ended on April 28, 1958 and admission

to the hospital was in September of 1960 did not change his opinion as to causal relation: "I think it is a very usual interval between magnating [ sic ] and final event in the course of radiation necrosis of the bowel * * * in the course of [x-ray] treatment, where there is scattering [of radiation], the bowel isn't entirely overwhelmed at first, it takes time for these terminal effects to become manifested."

Dr. Salvatore J. Rose, chief pathologist and director of laboratories of St. Michael's Hospital, Newark, testified as to the performance of the autopsy. The cause of death reported in the autopsy was "acute generalized peritonitis, E coli, resulting from ulcerative enteritis." He testified:

"* * * The ulcerative enteritis was attributed to the effects of radiation since there was no specific disease * * * to explain it. The presence of E. coli in the peritoneal contents indicated that there was leakage but since careful examination of the entire bowels, that is large and small, revealed no evidence of a perforation or rupture site, the peritoneal contents were interpreted as the result of simple seepage through a devitalized bowel wall by a phenomenon termed medically as diapedesis * * *."

He said "one of the ulcers might have had a very small pinhole perforation * * * which became obscured by the adhesion of an adjacent loop of bowel to that site, sealing it off." He concluded:

"In the absence of any primary significant pathology it is my opinion that the intestinal and abdominal findings were the results of the imposition of the effects of radiation therapy. These were most evident on the skin with the first and second ...

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