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Swinton v. Gregory Steel Welding & Fabricating Co.

Decided: November 6, 1972.

NORMAN SWINTON, PETITIONER-APPELLANT,
v.
GREGORY STEEL WELDING & FABRICATING CO., RESPONDENT-APPELLEE



For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For affirmance -- None. The opinion of the Court was delivered by Sullivan, P.J.A.D., Temporarily Assigned.

Sullivan

This is a workmen's compensation case in which the petitioner alleged that he sustained a diaphragmatic hernia by accident arising out of and in the course of his employment with respondent. The matter went to trial in the Division of Workmen's Compensation and at the conclusion of petitioner's presentation of proofs, on respondent's motion, the claim was dismissed on the ground that petitioner's injury was a traumatic hernia within the purview of N.J.S.A. 34:15-12(c)(23) and that petitioner had failed to prove notice to the employer within 48 hours after the occurrence of the hernia as required by the statute. Both the County Court and the Appellate Division upheld the ruling in unreported opinions. We granted certification. 60 N.J. 317 (1972).

The proof showed that on the afternoon of January 17, 1968, petitioner and several co-workers were unloading 500 pound steel beams from a truck when one of the beams fell against petitioner's chest and abdomen. Petitioner continued to work through the afternoon, but when he got home he complained of pain in his stomach. The next morning he left to go to work, but the record is unclear as to whether he actually reported for work. At about 2:30 A.M. the following morning petitioner was taken to the hospital complaining of abdominal pain in the epigastric region

and chest. After a series of x-rays and tests his condition was diagnosed as a hernia of the diaphragm due to trauma, with part of his stomach and colon intruding into the chest cavity. On January 24, 1968 the condition was corrected by surgical "repair of diaphragm after reduction of hernia." Petitioner was discharged from the hospital on February 6, 1968, but never returned to work. He died from causes unrelated to this case in May, 1969.

A claim petition was filed by petitioner on February 16, 1968 alleging "internal orthopedic" injuries. Respondent's answer set forth that receipt of the claim petition was respondent's insurance carrier's first notice of the alleged accident. The case was tried on September 10 and October 9, 1969 and at the conclusion of petitioner's presentation of proofs, respondent's motion to dismiss the claim was granted on the ground that "petitioner had failed to prove the statutory notice required in the event of a traumatic hernia."

An appeal was filed with the Union County Court. Prior to argument there, petitioner filed a motion in the Division to vacate the judgment of dismissal on the grounds of newly discovered evidence consisting of an accident report dated February 7, 1968 on file with respondent. The report referred to the January 17, 1968 accident and corroborated the essential elements of petitioner's version of the accident. At the same time petitioner sought to assert a claim for an alleged injury to his right hand arising out of the same accident. The compensation judge denied the motion in its entirety. As to the matter of notice, he held that the February 7, 1968 accident report did not bring petitioner within the statutory 48-hour notice. He noted that the alleged hand injury was not included in the claim petition or mentioned in the accident report of February 7 and concluded that petitioner had not "sufficiently alerted respondent as to that injury." Thereafter the County Court upheld the Division ruling.

Our Workmen's Compensation Act requires that the employer have notice of the occurrence of the injury and provides

that "[u]nless knowledge be obtained, or notice given, within ninety days after the occurrence of the injury, no compensation shall be allowed." N.J.S.A. 34:15-17. The original Act, L. 1911, c. 95, contained no special provision for hernias, compensation for them being allowed if they resulted from an accident arising out of and in the course of employment.

However, experience with hernia claims filed under the Act indicated that most of them were not true cases of hernia caused by accident. Consequently, by L. 1919, c. 93, the Legislature severely restricted the right to recover compensation in most hernia cases. The statute provided:

"(x) Hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia. * * *"

The foregoing statute established two classes of compensable hernias, first, the "real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall." The statute imposed no restriction or limitations on this type of hernia claim which was subject only to the notice requirement applicable to all other injury claims. Csont v. Standard Brands, 134 N.J.L. 395 (Sup. Ct. 1946). The second class of compensable ...


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