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Salerno v. McGraw-Edison Industries

Decided: July 22, 1971.

VINCENT SALERNO, PETITIONER-APPELLANT,
v.
MCGRAW-EDISON INDUSTRIES, RESPONDENT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub and Justice Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the Court was delivered by Francis, J.

Francis

[59 NJ Page 130] In this workmen's compensation case, petitioner Vincent Salerno alleged that he suffered bilateral inguinal hernias which arose out of and in the course of his employment with respondent, McGraw-Edison Industries. The claim was made on alternative grounds, i.e., either the hernias constituted an occupational disease under N.J.S.A. 34:15-31 or they were compensable as traumatic hernias under N.J.S.A. 34:15-12(c)(23). The judge of compensation found that the hernias resulted from a single work-connected lifting episode which occurred a week or two prior to October 31, 1967, but he denied an award because Salerno had not reported the hernias to the employer within 48 hours after their "occurrence" as required by N.J.S.A. 34:15-12(c)(23). Having concluded that the hernias were chargeable to the single lifting incident, he held that the occupational disease section of the Act, N.J.S.A. 34:15-31, would not support a recovery of benefits. The County Court concurred saying that its independent review of the testimony

led to the "inescapable conclusion that the herniation occurred as a result of the single lifting incident one week prior to October 31, 1967 and not as a result of a long series of trauma." Consequently petitioner's failure to give the required statutory notice to the employer deprived him of a compensation award. The Appellate Division affirmed in an unreported opinion, and we granted certification on petitioner's application. Salerno v. McGraw-Edison Industries, 58 N.J. 94 (1971).

Salerno, who was 46 years of age at the time of the event which produced this claim, had been in respondent's employ for 28 years. For the last 12 years, part of his duties consisted of lifting from the workbenches of the packers 40 to 50 pound boxes, packed with motors for dictating machines and placing them on a hand truck for removal from the work area. The hand trucks contained shelves on which the boxes were placed, and as the truck neared its full capacity it was necessary for Salerno to lift the 40 to 50 pound box from the workbench to a height of about five and one-half feet in order to fill the top shelf. When the hand truck was loaded, then weighing from 960 to 1200 pounds, he pushed it out of the work area over an uneven and rutted concrete floor. Doing this, he said, called for a "lot of effort."

According to Salerno's testimony, around July 1967 when he did considerable lifting during the course of a day, he experienced an "on and off" burning sensation across his groin. About one or two weeks before October 31, 1967, while he was in the act of picking up a heavy box, he experienced severe pain across his groin. It was so severe that he dropped the carton and went to his knees. Fellow employees helped him to his feet and he had to sit for a while. Then when the severe discomfort left him, he resumed work "thinking nothing of it." Thereafter, he continued his regular daily work without again experiencing the severe pain just described, although he did have the burning sensation at times when lifting. But at the end of the workday apparently he was exhausted; his legs felt "like lead." This

condition persisted and on October 31, after speaking with his foreman, he went to the plant physician, Dr. Curtis, to find out what was causing his problem. The foreman gave him a pass for the dispensary bearing the notation "Pain in groin * * * for about 2 weeks (comes and goes) * * *. Noticed pain when lifting something."

After examination, Dr. Curtis found a bulging bilaterally over the internal inguinal rings "though external rings are intact so far as there is no external impulse." His diagnosis was "Impending bilateral inguinal hernia." According to Salerno the doctor told him that he had hernias; that he should see his own doctor; and that he would have to wear a truss or have surgery if he wished to continue work. The doctor noted no external swelling or lumps in the groin area, nor were any noted or observed by Salerno who was not aware that he had the hernias until Dr. Curtis so informed him. In fact, he first noticed a lump on his left side from three to five months after the lifting incident. At any rate, after a confirmatory diagnosis by his own doctor Salerno obtained a truss and resumed work.

Each party produced an expert medical witness in support of his cause. Dr. Philip Willner, an orthopedic surgeon, examined petitioner on November 29, 1967 and found bilateral complete indirect inguinal hernias. It was his view that the hernias came about as the result of repeated lifting episodes (which he characterized as traumatic episodes) during the course of petitioner's work. And he mentioned particularly the "specific episode prior to October 31 which was severely traumatic" and gave Salerno "severe pain." He expressed the opinion that the severe incident of October was not the sole cause but a contributing factor in the end result; it "caused a further tear in the sac, that is the hernia sac, which caused an increased amount of pain but did not cause descent of the hernia * * *." In explaining the significance of the plant physician's findings, he said Salerno then had early bilateral inguinal hernias. The intestine had come through the internal inguinal ring into the canal but had

not yet descended through the external ring. In such a case the patient would not know he had the hernias; he would not feel any bulge. The only way this early type of hernia can be felt is by an examining physician who puts his finger in the inguinal canal up to the internal ring; he would then feel the bulge. At this time "one could not expect the individual himself to feel or make a diagnosis of a hernia either on one side or the other until later on." On November 29, 1967 Dr. Willner examined Salerno after removing the truss, and he noticed then that petitioner had the bilateral inguinal hernias. On coughing or straining, the intestine descended through the canal into the external inguinal ring. So at this time Salerno had developed complete bilateral inguinal hernias.

Dr. Robert J. Lorello, also an orthopedic surgeon, testified for respondent. His examination of petitioner on July 2, 1968, 10 months after the plant physician's examination, revealed bilateral inguinal hernias, each one about the size of a plum. In answer to a hypothetical question which included a reference to the October 1967 lifting incident he said the sole cause of the hernias was that incident. On cross-examination about the plant physician's findings of October 31, 1967, namely that the doctor had found bulging in the internal ring but that there was no external impulse because the external inguinal rings were intact, Dr. Lorello testified that on October 31, 1967 it was "impossible to say" whether petitioner would know he had a hernia.

There can be no doubt on the record before us that the work-connected lifting episode of a week or two prior to October 31, 1967 actually occurred and was accompanied by severe pain in Salerno's groin area. The judge of compensation accepted it as the fact and also found that that strain had probably caused the hernias. But he agreed with respondent's contention that compensation benefits should be denied because the statutorily required notice of the hernias was not given to the employer within 48 hours after their occurrence. Having concluded that the single October incident was the

more probable cause of the hernias, he likewise rejected petitioner's alternative claim that the hernias qualified as an occupational disease. On this appeal, we do not find it necessary to consider whether the hernias are compensable as such a disease under N.J.S.A. 34:15-31. The evidence being sufficient to support the trial judge's opinion that the probable cause of the hernias was the single lifting episode, we accept it as controlling. ...


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