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Fave v. David Kahn Inc.

Decided: January 13, 1970.

LAWRENCE DELLA FAVE, PETITIONER-RESPONDENT AND CROSS-APPELLANT,
v.
DAVID KAHN, INC., RESPONDENT-APPELLANT AND CROSS-RESPONDENT



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Respondent David Kahn, Inc. appeals from a judgment of the Hudson County Court affirming an award to petitioner Lawrence Della Fave by the Division of Workmen's Compensation of 3 1/2% permanent disability on a claim for abdominal strain. Petitioner cross-appeals from that part of a judgment which dismissed his claim for a compensable hernia.

It appears from the record that on March 30, 1965 and July 15, 1965 Della Fave was operated on for a right-sided and a left-sided inguinal hernia respectively. He returned

to work on August 16 with a note from his doctor, which was given to the employer, advising that petitioner "was to do no lifting." He was assigned to light work involving the operation of a plastic molding machine and the placement of the molded parts in boxes which weighed from 10 to 12 pounds when filled.

Subsequently, on Thursday, October 14, 1965, the foreman "switched" petitioner to another molding machine which turned out plastic parts at a faster rate. They were placed in a barrel weighing from 80 to 90 pounds when filled. At about 11:45 P.M., toward the end of the day's work shift, the "main boss helper" did not respond to petitioner's call for assistance, and he attempted to place the weighted barrel on a hand truck for the purpose of removing it to the back room. Petitioner claims that while in the process of lifting the barrel to the hand truck he felt a sharp pain in the right groin. After work he went home without reporting the alleged incident to anyone at the plant.

The following day Della Fave remained away from work and, at about 1 P.M., he met a friend by the name of "Joe", whose last name and address were unknown to him, at the Ideal Cafeteria in Hoboken. He testified that he asked his friend to telephone a "message" to his employer. Joe was not produced as a witness. When Della Fave was asked why he did not make the telephone call himself, he said, "I don't know why. I was afraid, I guess, to call up."

On Tuesday night, October 19, petitioner consulted Dr. Rustico Camangian. The doctor gave him a "slip" which he delivered the next day (Wednesday) to the personnel manager at the plant with the comment, "I had a hernia again from picking that barrel up." The manager then told him that the company could no longer use his services.

In his claim petition filed December 14, 1965, Della Fave described the extent and character of his injury thusly, "right abdomen, body, and possible hernia." In a pretrial memorandum filed with the Division, Dr. Camangian's "reported

finding" was listed as: "Recurrent right inguinal hernia." The only testimony before the Division was that of petitioner and his medical expert Dr. Joseph Visconti who examined him on January 3, 1966. The doctor testified in substance that the prior hernia operations were successful, they performed the purpose for which they were intended and "there was no evidence of recurrence within a reasonable time." It was his opinion that the new hernia, in the region of a scar, occurred in the abdominal wall -- "what we call a direct hernia" -- and it was attributable to the work incident described by petitioner. He further testified that there was "an antecedent strain." The doctor opined that the resultant disability was 10% partial permanent.

The compensation judge dismissed petitioner's claim at the close of his case for failure to meet the statutory notice requirements of N.J.S.A. 34:15-12 (c) (23) which provides:

Where there is a traumatic hernia compensation will be allowed if notice thereof is given by the claimant to the employer within 48 hours after the occurrence of the hernia but any Sunday, Saturday or ...


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