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Bollerer v. Elenberger

Decided: December 2, 1966.

JACOB F. BOLLERER, PETITIONER-RESPONDENT,
v.
GEORGE AND LUCILLE ELENBERGER, PARTNERS T/A CITY BAKERY OF LONG BRANCH, RESPONDENT-APPELLANTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

The Division of Workmen's Compensation dismissed the claim petition on the sole ground that petitioner had failed to prove by a preponderance of the credible evidence that he notified the respondent employers or that the employers had knowledge of the claimed compensable injury within 90 days after the occurrence, as required by R.S. 34:15-17. The judge of compensation made no determination on the substantive merits of the case, either as to whether the claimed accident had happened or, if it had, whether it was causally related to petitioner's disability.

On petitioner's appeal, the County Court reversed the Division. It ruled that the statutory requirement of notice or knowledge within the 90-day period had been satisfied. Instead of remanding the matter to the Division for a determination of the issues of "accident" and "causal relationship," the County Court resolved those issues in favor of petitioner and determined that he was entitled to an award of compensation. It remanded the case to the Division to determine only the quantum of the award. The Division fixed the quantum and upon its report to the County Court, judgment was entered for that amount in the County Court.

Respondent employers prosecute this appeal from the judgment of the County Court.

I

The County Court should not have disposed of the meritorious issues of "accident" and "causal relationship" without first having remanded those issues to the Division for its determination thereon. These issues required for their resolution an evaluation by the trier of the facts, the judge of compensation, of the credibility of the respective witnesses, whose conflicting testimony could best be assayed by the trial

judge. R.R. 1:5-4(b); Abeles v. Adams Engineering Company, Inc., 35 N.J. 411, 424 (1961). The course pursued by the County Court precluded its knowing and precludes our knowing the compensation judge's evaluation of the credibility and weight to be attached to the conflicting medical expert testimony, as well as that of the parties and non-expert witnesses. Where the credibility of the witnesses is the fulcrum upon which the case depends, it is all-important that a reviewing court should know the assessment thereof made by the trier of the facts.

II

We agree with the Division's finding that the notice or knowledge requirement was not satisfied. We would, therefore, reverse the County Court and direct a dismissal of the claim petition on this ground.

R.S. 34:15-17 requires that an employer must have actual knowledge of the occurrence of the claimed injury, or must be given notice thereof by the employee or someone on his behalf, within 90 days of the occurrence. This is a statutory prerequisite to the allowance of a workmen's compensation award. Hercules Powder Co. v. Nieratko, 113 N.J.L. 195 (Sup. Ct. 1934), affirmed 114 N.J.L. 254 (E. & A. 1935); Bucuk v. Edward A. Zusi Brass Foundry, 49 N.J. Super. 187 (App. Div. 1958), certification denied 27 N.J. 398 (1958). Panchak v. Simmons Co., 15 N.J. 13, 17 (1954), held that the notice or knowledge is sufficient "though it relates only to the injury rather than additionally to the accident which caused it." Goldstein v. Continental Baking Co., 16 N.J. 8 (1954), further liberalized the rule when it concluded that where there is enough to reasonably put the employer on inquiry as to the facts of the accident, that is sufficient. Also, where there is doubt as to the timeliness of the notice, the doubt ought generally be resolved in favor of the employee.

On the other hand, as stated in 2 Larson, Workmen's Compensation, ยง 78.31 (a), at ...


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