text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CAROLINE SCHMID, PETITIONER, v. STANTON FORGING COMPANY, INCORPORATED, RESPONDENT.
    Petitioner’s Husband, Employe of Respondent, was Killed While Engaged at His Employment — Employe Had Deserted His Wife — Upon a Court Order He was Paying a Fixed Sum for Her Support — A Son Also Contributed to Her Support— Under the Act Prior to 1923 Amendment, Respondent Must be Held Liable to Her as a Total Dependent — Did the Act of 1923, Relating to Partial Dependency, Affect the Case?— The Act and the Proper Construction Thereof Considered at Length — Held, That Petitioner is a Total Dependent and Or der Made Accordingly.
    On petition for compensation. On determination and opinion.
   The undisputed facts in this case are that the decedent deserted his wife, the petitioner, some time in 1931, and that petitioner went to live with her oldest son, where she has resided since that time. The petitioner, shortly after the separation, took legal proceedings in the courts of Berks county, Pennsylvania, and as a result thereof an order for support was made by the court requiring the decedent to pay the petitioner $10 a week for the support of herself and her minor son, Carl. Decedent paid the $10 a week intermittently, finally left Pennsylvania, and, he having been located in New Jersey, extradition proceedings were taken by the authorities in Pennsylvania, and he was brought back to Berks county in that state. This was shortly after the beginning of 1935. Arrangements with regard to the arrearages under the order having been made, and the case having been transferred to the Municipal Court of Philadelphia, in which city the petitioner was living, the latter court made an order for support of $10 a week to be paid by the decedent to" the petitioner and their minor son, Carl. This $10 a week the decedent paid regularly down to the time of his death. At the time of his death the petitioner was living with her eldest son, Ernest, in Philadelphia, and the moneys received from the decedent under this order were unquestionably used in conjunction with other moneys supplied by Ernest for the support of the petitioner, her minor son, Carl, Ernest and his wife, who constituted the household.

The fact of the employment of the decedent by the respondent is admitted, as is also the accident arising out of and in the course of the employment, the death as a result of the accident and the amount of wages, to wit, $50 per week.

The sole question, therefore, involved in the case is as to whether the petitioner is entitled to compensation as a partial dependent or upon the basis of total dependency upon the decedent.

This question involves two phases: First, the condition of the law preceding the passage of the amendment of 1923, being Pamph. L. 1923, ch. 49, p. 101, and secondly, what change, if any, the passage of this latter act made in the law, as applied to this case.

Prior to the act of 1923 there was no provision for partial dependency of any kind. In this situation the cases of Mees v. P. Ballanline & Sons, Inc., 37 N. J. L. J. 111, an Essex Common Pleas case, and McHugh v. E. I. duPont de Nemours Co., 39 Id. 153, a Salem Common Pleas case, were decided. These eases undoubtedly settle the question of the actual dependency of the petitioner in this case, and are binding upon me, subject to any change made by the legislature since the decision, there seeming to be no other reported cases in this state upon the subject.

In the Mees case the wife had pursued her claim for support against her husband with due diligence, and affirmed her dependency by procuring an adjudication of a court of competent jurisdiction, holding that she was living apart from her husband for a justifiable cause, determining her dependence and fixing the amount payable to her, although payments were not being made under the terms of the decree at the time of the husband’s death. Except for the fact of the matter of payments this case and the one at bar are parallel. The court, in the Mees case, took the view that the non-payment would not nullify the decree nor adversely affect the rights of the widow under the Workmen’s Compensation statute, the court saying: “There is no theoretical dependency here. The widow and child were actually dependent, although the widow was temporarily supporting both. Her effort to enforce her rights shows that she looked to her husband for her subsistence, and indicates a strong probability that his obligation would have been ultimately discharged, either voluntarily or involuntarily, but for his death. It seems to me that any other view would result in unjustly depriving of compensation for their support and maintenance those who are entitled to receive it, and I therefore find as a fact that the widow and infant child were dependents of the decedent and that the petitioner is entitled to recover.

In the McHugh case apparently there was not even an order of court upon the husband to support the wife, and no pajonents being made by the former to the latter voluntarily, but from the facts it was apparent that the petitioner still looked upon her husband as a means of support and that at some future time she would reeceive from him the necessary support. The court in this case said that the term “dependents” could not mean that the party must be actually receiving compensation at the time of the death of the employe, but that any person who was entitled to look for support from the employe and entitled to receive such support and had not waived rights by any acts or words, would be entitled to the compensation specified in the act. The court, therefore, found that the petitioner was an actual dependent upon the decedent ■ and was entitled to the minimum sum allowed in the act.

In both the above cases the court allowed full. compensation to the petitioner. At that time there was no provision whatsoever for partial dependency of any kind.

These cases, coupled with the facts of the present case, leave no doubt as to the actual dependency of the present petitioner. The remaining question, then, is what modification, if any, has the act of 1923 made upon these decisions as affecting the present case?

The important provision to be considered is the following quoted section of the Workmens Compensation act, being section 12, sub-section (g), as amended by Pamph. L. 1923, ch. 49, p. 101, the part of this section quoted below appearing on pages 106 and 107:

“(g) The term ‘dependents’ shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death, namely, husband, wife, parents, step-parents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half-brothers, half-sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children; provided, however, that dependency shall be conclusively presumed as to decedent’s widow and natural children under sixteen years of age who were actually a part of decedent’s household at the time of his death. Every provision of this act applying to one class shall be equally applicable to the other. Should any dependent of a deceased employe die during the period covered by such weekly payments, or should the widow of a deceased emplojn remarry during such period, the right of such dependent or of such widow to compensation under this section shall cease. It is further provided that the foregoing schedule applies only to persons wholly dependent, and that in the case of persons only partially dependent, except in the case of the widow and children, who were actually a part of the decedent’s household at the time of his death, the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deecased for their support constituted of his total wages and the provision as to an eight-dollar minimum shall not apply to such compensation * *

The construction which the respondent desires me to put upon this paragraph is that the words “except in the ease of the widow and children, who were actually a part of the decedent’s household at the time of his death” should be exactly the same as these words used in the fore part of the sub-section with reference to the provision as to the conclusive presumption of dependency, and after having put such construction thereon to conclude from that that the petitioner in this ease must necessarily be a partial dependent.

It is important to note, however, that when first used these words apply to the question of the presumption of dependency, and, when used the second time, to the question of degree of dependency, and more important still, that when this phrase is used in the first part of the sub-section there is no comma between the words “children” and “who.” It is apparent, therefore, that using these words in two different connections, and placing the comma between the words “children” and “who,” indicates that the legislature meant something by placing the comma there.

To ascertain the intention of the legislature the first resort in all cases is to the natural signification of the words employed in the order and grammatical arrangement in which the framers of the instrument have placed them. 12 C. J., note 12 and p. 1301 and cases.

Statutes are to be so construed that, if possible, full force and effect shall be given to every sentence, clause and word thereof. Steel v. Freeholders of Passaic, 89 N. J. L. 609; Bogert v. Hackensack Water Co., 129 Atl. Rep. 138.

Punctuation marks are not unimportant and may influence a doubtful case, and where there is nothing out of accord therewith, either in the particular language or the general intent, they are of controlling force. Peoria First National Bank v. Farmers, &c., National Bank, 86 N. E. Rep. 417.

It is proper, in case of doubt, that punctuation, &c., should operate as an aid in the construction and interpretation of the statute. 36 Cyc. 1117, 1118.

The placing of the comma in the phrase above quoted does not render it meaningless, but, on the other hand, shows a clear, pointed meaning. As the legislature must have meant something by putting the comma there, particularly under these circumstances, what did it mean ? Read as it is written, and giving full effect to the punctuation, it is' clear that the quoted phrase is a definition of the method of arriving at the compensation of persons only partially dependent but who were also actually a part of decedent’s household at the time of his death. Giving it the ordinary English construction, which would make the pronoun "who” refer to the "persons only partially dependent,” the provision can be seen to have the effect referred to. The only possible answer to this, it seems to me, would he that the intent of the legislature was to cover the entire subject in this'act, and, therefore, it should be read as a definition of the basis of compensation for all partially dependent persons. As against this argument we have the fact that even if the clause be construed as excepting widows and children who wore actually a part of decedent’s household at the time of his death, the legislature has made no attempt to define how the basis of compensation shall be fixed in eases where such parties are only partially dependent, and, furthermore, in providing that the provision as to an eight-dollar minimum shall not apply to such compensation, has made no provision in cases where the employe receives wages of less than $8 per week. Again, it has also made no effort to make the excepted widows and children in the presumptive clause totally dependent, nor to define what either total or partial dependency may he. So that, where the legislature has omitted to provide for several contingencies wdiieh might arise under this one single clause and which are not remoto contingencies, but evident from the act itself, it can easily he seen that it might reasonably do so so far as other items were concerned. In other words, in view of several very plain omissions, there is no presumption that the legislature attempted to cover every possible phase and contingency of the subject even so far as it might have been able to have done so.

Then, too, it is fundamental that it must be presumed that the legislature knew what the law was at the time the act was passed, and, therefore, had it desired to expressly change the status of dependent wives or children in respect to degree of dependency, it could have done so in plain and unambiguous phraseology. The legislature clearly did not do so, but, on the contrary, used language which strongly indicates a contrary intent.

Even if the construction could be strained to the point contended for by the respondent, it would be necessary to decide further that the petitioner, under the circumstances of this case, was a partial dependent, and there is grave doubt of even this being true.

Therefore, to sustain the contention of the respondent, I must decide that the petitioner in this case, who would have been a total dependent prior to the passage of the act of 1923, is rendered a partial dependent by the provision of the statute above referred to, simply because she may not have produced proof showing that she, nor anybody else, has been spending a cent for her support except the amount paid by the decedent under the said court order. In other words, I would have to decide first that the petitioner comes in the classification of partial dependency against the clear import of the wording of the act, and secondly, having .decided this, that because the court ordered the husband to pay a sum which might have been less than the actual amount used for her support, the balance of it being furnished by her son or someone else, she is therefore dependent only to the extent of the proportion which the husband contributed under the court order. Suppose the husband had been paying nothing at all under the court order. Under respondent’s theory I would have to hold that there was no actual dependency at all, and, therefore, not only overrule the prior cases above cited, but establish the doctrine that the legislature intended that the degree of a wife’s dependency is to be in direct ratio with the ability of an errant husband to evade payments of support to a wife who has never relinquished or forfeited her right to that support. There seems to be no justice, reason or authority in the wording or spirit of the act for any such conclusion.

A petition having been filed in the above-stated matter praying for compensation to which the petitioner and her minor son, Carl, may be entitled by virtue of the terms and provisions of an act of the legislature of the State of New Jersey entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of the employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and acts amendatory thereof, and it appearing to the court that the decedent, William Schmid, was on March 12th, 1926, in the employ of the respondent in the capacity of a steam forger; that at the time of the inj ary the said William Schmid received as wages in said employment the sum of $50 weekly; that on the said 12th day of March, 1926, while in the course of his employment and while engaged in his work as a steam forger, the tongs under the job upon which he was working flew off and a lever thereof cut the main artery of decedent’s left leg, the artery drew np into the abdomen, causing internal hemorrhages, and that decedent died on the same day, to wit, March 12th, 1926, as a result of said accident and injury; that the respondent herein had knowledge of said accident; that the petitioner, Caroline Schmid, the wife of the said decedent, was totally dependent upon the said decedent for support at the time of said injury and death, and that the said petitioner is entitled to compensation for a period of three hundred weeks commencing March 12th, 1926, at the rate of $17 per week, and in addition thereto the sum of $150 on account of funeral expenses.

Since the son, Carl, was over the age of sixteen years at the time of the accident and death of the decedent, he is not a dependent within the meaning of the act.

It is therefore oil this 30th day of March, 1927, on motion of Waddington & Mathews, attorneys for the petitioner, ordered that the respondent herein pay or cause to be paid to the said petitioner the sum of $17 per week for a period of three hundred weeks from the 12th day of March, 1926, together with the additional sum of $150 on account of funeral expenses, and that the said respondent pay or cause to he paid to the said petitioner the arrearages now due her in a lump sum.

And it is further ordered that Waddington & Mathews, the attorneys for the petitioner, be allowed a counsel fee of five hundred dollars ($500), and that the respondent, in addition to the sum above mentioned, shall pay one-half thereof and the petitioner one-half thereof.

Charles E. Corbin, Deputy Commissioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VICTORIA SOCHASKA, PETITIONER, v. BALBACH SMELTING COMPANY, RESPONDENT.
    Death — Lead Poisoning Alleged — Circumstances Peculiar and Facts Reviewed at Length — Contention of Respondent That Death was Result of Outbreak of Long-standing Disease Not Established — Held, That the Death was Result of Lead Poisoning.
    On determination and order.
    Eor the petitioner, Meyer M. Semel,

    For the respondent, Edwin Kautzman.

   # #

That the petitioner, Victoria, Sochaska, is the widow and administratrix ad prosequendum of the estate of Ludwig Sochaska, deceased.

That the said Ludwig Sochaska, deceased, was employed by the respondents, who were engaged in the business of smelting and refining, in the city of Newark, and that the deceased, in his lifetime, was first employed by the respondents some time during 1906, at which time he was engaged as operator of a blast furnace, which occupation the decedent did pursue for and as employe of the respondents until January, 3914, when he was transferred to the yard division. His employment in the yard consisted of the breaking up with a hammer of metallic bodies weighing about two hundred and fifty pounds each and called copper mattes, which mattes in turn were composed of sulphide of copper, lead, iron, gold and silver. These mattes the decedent broke up with a hammer into small pieces, which small pieces were stacked up in piles or thrown into piles by the decedent after the same were broken up.

I do find also that these capper mattes contained from ten per cent, to fifteen per cent, of lead, the percentage of which varied.

I do also find that the decedent was transferred from the blast furnace to the yard division in 1914 because he became affected with a condition of the wrists, and that the superintendent thought it advisable to put him in the yard.

Respondents contend that deceased contracted lead poisoning at that time, which became chronic and which caused his death in March of 1925. There is a likelihood that decedent did contract lead poisoning in some form at that time. There is no medical testimony, however, from which this can be established, and particularly that it was chronic and was responsible for his death as they contend.

I find from the testimony of the superintendent, Mr. Zahn, that the decedent worked continually in the yard breaking copper mattes until about September 10th, 1922, when he ceased his employment with the respondents, but returned to the same on the 28th day of May, 1923, when he was put back to work on the same job.

I do also find from the testimony of the said superintendent that the wrist drops had improved and that the decedent was able to use both hands in the breaking up of the mattes and piling them, and that by the 21st day of January, 1925, there was such a decided improvement in the wrists that the decedent had practically the full functionary powers of his wrists and hands, which to my mind indicated also a decided improvement of any lead poisoning condition to which he may previously have been subjected. This conclusion is further evidenced by the fact that until the 21st day of January, 1925, the decedent worked continually and steadily for the respondents, losing no time from work by reason of any illness.

I do further find that on the 21st day of January, 1925, the decedent suddenly became very ill and was caught by a fellow-employe as he was apparently fainting. The testimony of Louis Dickson, a fellow-employe, shows that the said Louis Dickson was standing about three feet from the decedent; that the decedent called to him and that when the said Louis Dickson looked at the decedent he saw that there was something the matter and that the decedent was going to fall. Decedent’s eyes were red and the said Louis Dickson caught him before he fell and carried him into the yard.

The testimony of the superintendent, Mr. Zahn, shows that the decedent was lying on the ground and frothing at the mouth, and that because the man appeared to be very ill, the superintendent caused the decedent to be sent home in the private bus of the respondents.

I do find further, that from the 21st day of January, 1925, until the 22d day of March, 1925, the decedent was confined to his bed and home, and that on the 22d day of March, 1925, decedent died. The only testimony adduced at the trial and from which I could arrive at the canse of the decedent’s death was that of Dr. Saul Rubinow, who attended the decedent during his last illness, and who testified that he treated the decedent for the first time on January 21st, 1925, at his home, where he found the decedent suffering from an abdominal pain, colic, general weakness and constipation, which were the symptoms decedent gave him. He found decedent to be very pale, with a typical pallor of his face, and that upon seeking to find the cause for his abdominal colic, he found the man had a blue line around the gums. In addition thereto, there was weakness and a tremor of his muscles, constipation without temperature. From these symptoms Dr. Rubinow diagnosed the ease as that of acute lead poisoning. He continued to treat the man and found from further examinations and diagnoses that the condition was acute, and that the poison condition had existed a few weeks; that he made a urine test and found albumen in the urine; that he caused to be made a blood test and found a low hemoglobin of the blood. That he treated the man until the man died, during which time the doctor observed that decedent’s condition became gradually worse, and that the man died of nephritis, or Bright’s disease, which was brought about and was due to lead poisoning.

I find from the testimony of the petitioner, Victoria Sochaska, and from the superintendent, Mr. Zahn, that the decedent enjoyed good health and worked steadily from 1914 until Januarjq 1925, when he received the above attack, and that during that time he had not lost any time from his work by reason of sickness.

I also find that there is no evidence from which the death of decedent can be attributed to any other condition, disease or injury.

I am especially impressed by the testimony of Dr. Elachs and Dr. Eowler, medical experts who were produced by the respondents and who both testified that from the hypothetical questions submitted to them the man very likely died from exposure to lead, which exposure very likety occurred within five months of the date of his death by reason of the fact that his death occurred about two months from the time when he became ill.

Erom the testimony of Mr. Zahn, Mr. Dickson and Mr. Pfennig, witnesses produced by the respondents, it is very evident that the decedent was working under conditions which ordinarily would not have subjected him to any dangerous exposure to lead. While there is no testimony to establish the fact itself, the medical testimony adduced by both petitioner and respondents shows beyond any question of doubt that the decedent died as a result of an acute condition of lead poisoning termed by the doctors as an exaserbation due to a severe exposure a short time prior to his death.

I am therefore forced to the conclusion that in the course of his work of breaking up the mattes and handling the pieces and from the other conditions under which he worked at the plant of the respondents, he undoubtedly became exposed in' such manner to lead poisoning that either by inhalation or absorption he received into his system lead in such quantities, within a period of five months of his death, that his illness resulted therefrom in January, 1925, and which led to his-death in March of the same year. This fact becomes more decisive in view of the testimony of the physicians who testified that if the man had continued to work under the same conditions which he had worked under from 1914 to January, 1925, that he could have continued to work under those conditions indeterminately and without becoming exposed to any harmful degree of lead, unless a great or intensive exposure occurred which alone would bring about his illness and death, as it, in fact, occurred.

The respondents laid great stress upon the fact that the decedent died from an exaserbation of a chronic condition which they claim existed from 1914 and prior thereto. The respondents have not, however, been able to account satisfactorily for the fact that, assuming that the man in 1914 and prior thereto had lead poisoning, that after being shifted to the yard division, his condition generally and continually improved, and that by 1924 his condition had so improved that he almost had the full function of his wrists and hand. To my mind, such an improvement in the wrists and hands would indicate a decisive improvement in his general condition, and the lessening, if not entire elimination, of any lead poisoning condition which may have existed in him in 1914 and prior thereto. That the man should be improving continually and then suddenly become seriously ill and die about two months thereafter from a condition, the symptoms of which indicates clearly an acute condition of lead poisoning, indicates to my mind without any question of doubt that the decedent died from an extraordinary or intensive exposure to lead poisoning which occurred within live months of the date of his illness and death.

And I do so find that the decedent has, in the course of his employment, been exposed to lead, which exposure arose out of and in the course of his employment and brought about his death within a period of five months or loss of the date of his death.

I do further find that the petitioner is entitled to temporary compensation l'or herself and the five children from the 21st day of January, 1925, to the 22d day of March, 1925, to wit, eight and four-sevenths weeks, at $16.67 per week, being $142.88.

1 do further find that the petitioner is entitled to permanent compensation from the 22d day of March, 1925, for two hundred and seventy-four and four-sevenths weeks, at $13.75 per week, being $3,775.35.

I do further find that the petitioner is entitled to twenty-five and three-sevenths weeks’ permanent, at $12.50 per week, being $317.85.

I do further find that the petitioner is entitled to one hundred and sixty-one and one-seventh weeks’ permanent, at $11.25 per week, being $1,812.85.

I do further find that the petitioner is entitled to eighty-eight and six sevenths weeks’ permanent, at $10 per week, being $888.57.

I do further find that the petitioner is entitled to two hundred and forty-three weeks’ permanent, at $8.75 per week, being $2,126.25.

I do further find that there is due to the petitioner the sum of $150 for funeral expenses incurred for the burial of the decedent, and the further sum of $30 for medical expenses incurred in the care and treatment of the decedent in his last illness.

I do further find that there is due the petitioner the sum of $5, being the costs expended for obtaining letters of administration ad prosequendum, and the further sum of $25 for stenographic fees incurred in the hearing of the within matter.

I do further find that there is due the petitioner the sum of $100, being expense incurred for medical expert testimony in the hearing of the within matter.

I do order the respondent to pay to Meyer M. Semel, attorney for the petitioner, the sum of $375 as and for his counsel fee in the within matter.

I do further order the petitioner to pay unto Meyer M. Semel the further sum of $375 as and for his counsel fee, which shall be paid out of accrued compensation due to the petitioner.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD PETTI, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Hernia Alleged as Result of Lifting Garbage Cans While in Re spondent’s Employ — Statement Without Corroboration — Testimony to Show Story Untrue — Complaint Not Sustained.
    On petition for compensation. On finding of facts and determination.
    Eor the petitioner, Henry Carless.

    Eor the respondent, John B. Stanard.

   fff :!f # i\:

The petitioner was employed by the respondent as a laborer on or about April 7th, 1926, and that he continued in such employment up to October 9th, 1926, and that he worked in the refuse collection division of the respondent.

3. That the petitioner at the time of the alleged injury received for his services wages amounting to $25.92 per week.

4. That on the said 9tli day of October, 1926, petitioner claims to have sustained personal injuries following his efforts in lifting a can of household refuse into one of the refuse trucks of the respondent; that he immediately suffered severe pain in the hernial region and was forced to at once cease his labors; that immediately thereafter he sat upon a stoop in Hunterdon street, and that he notified his foreman of his injuries, and that his foreman sent him to one of the physicians of the respondent.

5. That petitioner’s testimony with respect to the manner in which he received his hurts is without corroboration. The testimony of petitioner’s foreman is to the effect that on the morning of said October 9th, 1926, he, the foreman, told petitioner that his services were no longer needed and that he was discharged; that thereupon petitioner told him that he was hurt and the foreman told him that he should see a doctor. The foreman further stated that he had no knowledge of the alleged injury to petitioner; that he did not know of his injury until so told by petitioner; that he did not see petitioner at any time sitting on a stoop in Hunterdon street, and that petitioner’s place of employment was on top of respondent’s trucks, and not on the sidewalk, lifting cans as petitioner had alleged.

6. That the testimony of one Walter Wiley, for the respondent, was to the effect that he was employed in the same loading gang with the petitioner; that they worked together on the morning of October 9th, 1926; that he did not know that petitioner had received any injuries; that he did not see petitioner sitting on the stoop in Hunterdon street; that petitioner was stationed on the truck to receive the cans as they were passed up to him. There is further testimony for the respondent by Thomas McHale, superintendent of one of respondent’s collection districts, who stated that petitioner’s duties were to dump the cans that were passed up to him by those below; that on his previous inspections of the work done by the crew in which petitioner was employed he had found inefficient conditions, and that he 'instructed the foreman, Charles Leonardis, to correct the same.

7. That the respondent had no actual knowledge of the occurrence of the alleged injury to petitioner and that the petitioner did not prove by a preponderance of evidence that he had incurred the alleged hernia in the course and Out of his employment, as is shown by the above testimony of respondent’s witnesses, and that petitioner made no mention of his injury to his foreman until after he had been -discharged.

It is therefore, on this 15th day of March, 1927, ordered that judgment final be entered in favor of the respondent and against the petitioner.

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TIMOTHY SHEEHAN, PETITIONER, v. ERIE RAILROAD COMPANY, OR, IN THE ALTERNATIVE, CHARLES WAGNER, DOING BUSINESS AS WAGNER CONSTRUCTION COMPANY, RESPONDENTS.
    Employe Names as Respondents a Railroad and a Contracting Company — Petition Dismissed Against Railroad Company, the Company Not Being the Employer — Accident Occurred While Petitioner was in Employment of Contracting Company, and Temporary Compensation Paid — Afterward, Cataracts Appeared on Both Eyes — Held, That Petitioner Has Not Sustained the Burden of Proof That the Cataracts Were the Result of the Accident.
   On opinion, determination oí facts and rule for judgment.

* * * * * *

I, having heard and considered the testimony adduced, do hereby determine and find as follows:'

1. That Timothy Sheehan, on August oth, 1925, was employed by the respondent Charles Wagner, one of the respondents, as a watchman, which employment was subject to the compensation section of chapter 96, laws of 1911, and the supplements and amendments thereto.

2. That the said Timothy Sheehan was not employed by the Erie Railroad Company, and, in fact, the proceeding in compensation was not pressed as against the said Erie Railroad Company, and judgment in favor of that company should be entered against the petitioner for that reason.

3. That on August 5th, 1925, aforesaid, the petitioner, while walking in what is known as the Bergen Cut of the Erie Railroad Company, and engaged in his work as watchman for the respondent Charles Wagner, was struck by a locomotive and injured. The accident arose out of and in the course of his employment with the respondent Charles Wagner.

-1. The petitioner was removed to St. Francis Hospital and there examined and treated by Dr. Brick, a general surgeon. There was a laceration on his right cheek bone, a laceration over the right eyebrow and a fracture of the fourth and fifth ribs. The petitioner left the hospital about three weeks after the accident.

5. The respondent Charles Wagner paid to the petitioner the sum of $343.39, which was for twenty-three weeks at the rate of $14.93 per week, the petitioner’s weekty wages being $22.40.

6. The claim petition in this cause was sworn to March 20th, 1926, approximately seven months after the accident occurred, and it is now claimed that as a result of the accident the petitioner has been totally and permanently disabled. The chief claim of disability relied upon was that cataracts were present in both eyes of the petitioner. There is no dispute about the fact that cataracts are present in both eyes of the petitioner, but the question of whether or not the accident was the cause of the cataracts constitute in the main the dispute at issue.

7. After weighing the testimony produced by the petitioner and that produced by the respondent on the vital issue of whether the petitioner’s cataractous condition was due to the accident, I have come to the conclusion that the petitioner has not only failed to substantiate his contention by the greater weight of the credible testimony, but that the respondent has proven the petitioner’s cataractous condition was not due to the accident.

8. After taking into consideration the nature and extent of the injury and disability that the petitioner received as a result of his accident, and weighing the medical testimony on the subject, I have concluded that the petitioner has been fully compensated for all the disability that he suffered as a result of the accident.

It is therefore, on this 7th day of April, 1927, ordered, adjudged and decreed that the petition of the petitioner be and the same hereby is dismissed and for nothing holden, as against both the respondent Erie Railroad Company and the respondent Charles Wagner.

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER W. SMITH, PETITIONER, v. R. HOE & COMPANY, INCORPORATED (DESIGNATED IN PETITION AS R. HOE PRINTING PRESS COMPANY), RESPONDENT.
    Petitioner Claims Injury to Back as Result of Lifting Heavy Load —Little Testimony to Show the Lifting was Cause of Injury, and Some Testimony to Show That Petitioner Had Had a Previous Injury to Back Caused by Slipping on a Sidewalk— Case Not Established.
    On petition for compensation. On determination and rule for judgment of dismissal.
   A petition having been filed and served in the above entitled cause, praying for compensation under the provisions of chapter 95, laws of 3911 (and supplements and amendments thereto), known as the Workmen’s Compensation act, and an answer having been filed by the said respondent, and the cause having been set down for hearing on February 2d, 1926, before W. E. Stubbs, deputy commissioner of the workmen’s compensation bureau, on which date the parties appeared, the claimant represented by Charles Becker, Esq., as attorney, and the respondent by Clarence B. Tippett, Esq., its attorney; and testimony having been offered on behalf of the parties hereto;

I do find and determine from the evidence as follows:

The petitioner claimed that on February 8th, 1926, he was lifting a heavy steel box or cope loaded with sand, and hurt his back; that he called to a co-worker named Skapik to take the cope from him, claiming his back hurt him, and that Skapik did take the cope and put it down; he finished that day’s work, was off the 9th and the 10th, returned and worked the 11th, 12th, 33th, 15th and 16th, and had not worked since. He testified to having gone to Dr. Lufburrow on February 17th, who treated him for about six weeks; then he left and went to a Dr. Platt, who treated him from March 34th to June 11th. He testified at considerable length on the nature of his work, the nature of his treatments by the doctors, and, in substance, claimed that they treated him for conditions which were the result of his alleged accident. There were X-rays taken of his back. He was later under treatment by Dr. Shapiro and by Dr. Cahill. He contended he had told Dr. Lufburrow' of his alleged accident but did not tell Dr. Platt until about April 38th. Respondent’s counsel cross-examined the witness at some length on the direct testimony, all of which testimony I have, duly considered.

Dr. Lufburrow testified first seeing Smith on Eebruary 17th, with a claim of pain in his back, queer pains in his limbs and all over his body. He examined him very thoroughly — heart, lungs, blood pressure, and concluded he had a neuritis. At no time did he show any evidence of injury to his body at all. His teeth were found to be in bad condition. The doctor denied that he had ever received a history of injury or claim of injury from the patient during the time he treated him; that no complaints were referable to any injury.

Dr. Platt also was called as a witness by petitioner. He had obtained a history of pains in back, legs, arms — an indefinite train of symptoms without stress or complaint of any particular location. It was not until April 38th that he received- the first history of an act of lifting a cope, at which time the patient claimed he felt a kink in his back. It was the doctor’s opinion, on cross-examination, that the conditions were not the result of the alleged claim of accident.

The witness, Skapik, called by the petitioner, recalled an instance early in Eebruary, on or about Eebruary 8th, 1936, when he took a cope from Mr. Smith, who said his back hurt him when he lifted it and did not want to drop it. On further questioning, this witness emphatically stated that a day or two before this occurrence of February 8th, Mr. Smith told him that the evening before he had slipped while walking on the street, kinking his back, and it had hurt him ever since. This witness also testified that he had told Mr. Smith he could not testify in his favor regarding an accident on February 8th, but that it did occur a day or two before.

Dr. Shapiro also testified, and I have given consideration to his testimony, he having seen the petitioner about July 19tli and had him under observation and treatments until about December loth following.

The respondent produced for testimony the nurse at the plant and also the personal director of the company

I have considered all of the testimony which was presented in this case, the nature of the work done by the claimant, his testimony and that of his witnesses produced, and I am induced to the conclusion that the evidence in this case is insufficient upon which to base an award. The burden of proof rests with the petitioner to show not alone the occurrence of an accident or injury, but that it arose out of and the course of his employment with his employer. There is no corroborative proof that an act of lifting was the proximate cause of his alleged pain or kink in the back. There is proof by his own witness of an occurrence which happened a day or two before, which tends to refute any real traumatic injury occurrence as happening to the claimant on February 8th, 1920. This testimony of the witness Skapik is unrefuted in tbe record. I am, therefore, induced to the conclusion that the claimant has failed to sustain the burden cast upon him of proving that an accidental injury was sustained on February 8th within the reasonable contemplation of the Workmen’s Compensation statute.

The most that can be said regarding the described occurrence of February 8th is that it is a mere incident, and the act of lifting and feeling a pain on February 8th was primarily directing attention to the conditions which seemed to have been called into being by the event two nights before, which clearly was not in the course of his employment. The employer is only to be charged with liability for the conditions the result of Injury arising out of and in the course of the employment.

The medical evidence produced does not incline to support, but, to the contrary, tends to refute a causal connection between the accident and injury claimed.

The petitioner would have us believe that he went to Dr. Platt for the express purpose of having his treat his back, on account of injury to it, as the result of an accident. It is inconceivable that a person would do this and then not tell the doctor why he was there. Dr. Platt’s testimony, corroborated by the petitioner, shows that he did not explain about an accident until the doctor had been treating him for approximately five weeks. It is also significant that the petitioner did not at any time make any application to his employers for medical service, although he claims to have reported the occurrence. There is no corroborative evidence of this contention which is denied by the respondent.

My conclusion, therefore, is that the petitioner has failed to sustain the burden of proof required in order to justify an award in this case.

It is therefore, on this 2d day of April, 1927, ordered that judgment enter in favor of the respondent and against the petitioner, and that the petiion herein be dismissed.

W. E. Stubbs, Deputy Commissioner.


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    FREDERICK E. MOHRMANN, PROSECUTOR, v. TOWN OF BLOOMFIELD ET AL., DEFENDANTS.
    Argued September 9, 1927
    Decided September 15, 1927.
    Municipalities — Ordinances—Contracts for Fire Hose — No Irregularity Found.
    On application for writs of certiorari.

    Before Justices Trenchard, Kaltsor and Katzenbacii.
    Eor the'prosecutor, Thomas Brunetio.

    Eor the defendant Fabric Eire Hose Company, Osborne & Asllrnj.

    Eor the defendant town of Bloomfield, Raymond F. Davis.

   Two writs are applied for; one to review an ordinance of the town of Bloomfield appropriating money for the purchase of fire hose, and another to review the resolution awarding the contract to the Fabric Fire Hose Company.

After full and careful examination of the points made by the prosecutor in the light of affidavits we are of the opinion that there is no irregularity either in the ordinance or the resolution, or in the proceedings leading up to either, sufficient in our judgment to justify us in awarding either writ applied for.

Both applications are denied accordingly, but without costs.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DUNCAN McANDREW, PETITIONER, v. PERCY G. ALLAN, RESPONDENT.
    Alleged Infection' of Hand Resulting From Injury Caused Through Handling Concrete Blocks — Employer and Fellow-Employes Not Aware of Injury at the Time — Held, That Evidence Falls Far Short of Connecting the Infection With the Handling of the Concrete Blocks — Case Dismissed.
    On determination of facts and findings.
    For the petitioner, Ralph J. Smalley.

    For the respondent, Harry E. Walburg.

   H* »{• »!» •!» >¡!

2. The petitioner testified that he was employed by the respondent on October 2d, 1926, to assist in mason work in the construction of a house by the respondent on Cole .avenue, Plainfield, New Jersey; that he worked for the respondent from October 2d, 1926, to October 8th, 1926; that he was paid fifty cents an hour as wages. On October 5th, 1926, he was handling cement blocks, which were rough, and one of the cement blocks scratched his left hand. That he reported the accident to his employer, and also told Mr. Burgess and Mr. Getz, fellow-employes, that he injured his hand on October 5th, 1926. After the injury he wore a bandage on his hand which the other employes saw. He was discharged from his employment on October 8th, 1926, as there was no further work to do. About a week after his discharge he went to Dr. Anthony, of Plainfield, New Jersey, who sent him to the Muhlenberg Hospital, and he remained there for fifteen days and received treatment at the clinic until December 21st, 1926. Dr. Morris, attending surgeon of the Muhlenberg Hospital, testified that he saw the petitioner at the hospital on October 18th, 1926, and at that time the petitioner had an infection in his left hand. The hand was operated on by Dr. Morris and treated by him while the petitioner remained in the hospital. Dr. Morris did not take any history of the case. Dr. Morris testified that in his opinion the petitioner sustained permanent disability of ten per cent, to fifteen per cent, of the left hand.

3. Dr. Feigenbaum, a doctor who is associated with the Muhlenberg Hospital, testified that on October 9th, 1926, the petitioner was admitted to the Muhlenberg Hospital and gave a history of having picked a piece of callous from his left hand on October 2d, wdiich bled a little, and that several days later his hand became sore. The day before he was admitted to the Muhlenberg Hospital the petitioner stated that he went to Dr. Anthony, of Plainfield, New Jersey, who lanced the hand and then sent him to the hospital. Dr. Eeigenbaum also testified that the petitioner did not tell him that he received an injury to his hand by handling cement blocks while employed by the respondent. The respondent, Mr. Allan, and Mr. Burgess and Mr. Getz, all testified that at no time had the petitioner ever told them that he had received an injury while working for the respondent, nor at any time did he complain of any injury to his hand. The respondent testified that the first knowledge he had of the alleged injury was when he received notice that the petitioner was in the hospital. Mr. Kuhl, adjuster of the New Amsterdam Casualty Company, the insurance carrier for the respondent, produced a signed statement which he had taken from the petitioner, in which the petitioner stated that the skin on his left hand was rubbed off from the continuous handling of concrete blocks and that he did not know of any particular occurrence which caused the1 scratches to his hand. Mr. Kuhl stated that he wrote down the story which the petitioner gave him and gave it to the petitioner, who signed it. The petitioner denied that he read the contents of the statement he signed. Dr. Chapman testified for the respondent that he examined the petitioner on May 23d, 1927. At that time the petitioner told him that on October oth, 1926, while employed by the respondent, the skin on both of his hands became rubbed off while handling concrete blocks and that several scratches appeared after that. Dr. Chapman estimated the petitioner’s permanent disability at ten per cent, of the left hand.

4. The question in this case is purely one of fact, and the evidence produced by the petitioner has fallen far short of satisfying me that he received an injurjr to his left hand as a result of an accident arising out of and in the course of his employment with the respondent. The testimony of the petitioner is in direct conflict with that of the witnesses produced by the respondent, and after observing the demeanor of the various witnesses on the stand and considering their interest in the matter, I am satisfied that the witnesses of the respondent were telling the truth. In addition to this, the hospital records show that the history of the injury given by the petitioner when he entered the hospital does not refer or mention in any way that he scratched his hand while working for the respondent. I am also satisfied that the petitioner read the statement drawn up by Mr. Kuhl before he signed it. In view of all of these facts I must necessarily find in favor of the respondent and against the petitioner.

It is therefore, on this 22d day of June, 1927, ordered that the claim petition be and is hereby dismissed, and that judgment be entered in favor of the respondent.

Charles E. Corbin, Deputy Commissioner.


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    STATE, EX REL. WILLIAM H. CAMPBELL ET AL., RELATORS, v. JOSEPH G. CHAMPION ET AL., RESPONDENTS.
    Decided September 13, 1927.
    Quo Warranto — Municipal Offices — Motion to Vacate as Improvidently Granted — Relators Allege That, a Municipal Election Having Been Held Under an Improper Statute, the Officers Formerly Holding Continue in Office — Respondents Allege That the Rule is Definite That a Proceeding Such as This Does Not Lie in the Hands of an Individual to Attack the Existence of a Municipal Corporation Under Which the Offices Were Created — Held, That the Proposed Attack Appears to be Rather That the Election Being a Nullity, the Relators Held Over and Respondents Have Usurped the Offices Belonging to Relators.
    On quo warranto.

    Before Mr. Justice Campbell.
    For the relators, Clarence L. Cole.

    For the respondents, Emerson L. Richards and Frank Stanley Kreps.

   I am asked to vacate a consent heretofore granted by me for leave to exhibit an information in the nature of a quo warranto in that it is urged that it was improvidently granted and also that the information be stricken out, in that the proceeding is not warranted by section 1 of the Quo Warranto act, under which, concededly, it was instituted.

The exact contention is that by the proceeding in question the relators are attacking the existence of an office or offices and not merely the right of the incumbent respondents to occupy and hold the same.

The contention of relators appears to be that an election, held in Ocean City on May 10th, 1927, was held pursuant to tire provisions of chapter 221, Pamph. L. 1911, and its supplements and amendments, and should have been held under Pamph. L. 1934, p. 319. The difference being that under the latter act a mayor and four commissioners should have been chosen, while under the former act three commissioners only were chosen; that such election was a nullity and the commissioners holding office prior to such election held over, and relators are two of such persons. Steelman v. Vickers, 51 N. J. L. 180; Gibbs v. Somers Point, 49 Id. 515; Holloway v. Dickinson, 69 Id. 73; Moore v. Seymour, 69 Id. 606, and Morris v. Pagan, 85 Id. 617, cited by respondents, definitely lay down the rule that a proceeding such as this does not lie in the hands of an individual to attack the existence of the municipal corporation under which or by the power vested in which an office or offices is or are created.

Prom the facts before me, however, the proposed attack of relators does not appear to be in that direction, but rather, as before stated, the election of 1937 being a nullity, they held over as commissioners and all or some of the respondents have intruded into, usurped and are occupying offices that relators are entitled to occupy.

The application to vacate and strike out is therefore denied.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    PAUL SGRO, PETITIONER, v. B. W. MAHER. RESPONDENT.
    Petitioner was Employed in and Around a Greenhouse — Injury the Result of a Fall in Greenhouse — Petitioner Alleged That He Slipped on a Step Entering the Greenhouse — Evidence to Show That He Fell While Talking to Another Person— Personal Examination Revealed That There Were No Steps as Petitioner Alleged — Petitioner Has Not Established His Case.
    On determination and finding of facts and rule for judgment.
   ^ $ í¡í sfc

I, having heard the testimony adduced, do hereby determine and find as follows:

1. That Paul Sgro was, on September 16th, 1925, in the employ of B. W. Maher, the respondent, as a laborer or gardener, which employment was subject to the compensation section of chapter 96, laws of 1911, and the supplements and amendments thereto.

2. That on the aforesaid day, the petitioner had occasion to go into a greenhouse owned by a party named Matovski, for the purpose of delivering a plant owned by the respondent, to the said greenhouse. While in the said greenhouse, the petitioner fell to the floor thereof and sustained injuries for which he seeks in this proceeding to recover compensation against the respondent. On the vital question of what caused the petitioner to fall, there was a sharp conflict. The petitioner testified that he was carrying a large plant into the greenhouse, and while going down certain steps from the door of the greenhouse to the floor thereof, he slipped and fell. The respondent produced a witness named James Hughes, however, who was entirely disinterested and brought to court under subpoena. Hughes testified that just before the petitioner fell, he, Hughes, was walking up the path that led to the door of the greenhouse, and saw the petitioner inside the greenhouse through the open doorway, talking to Mrs. Matovski.. As the witness, Hughes, approached nearer, and while still looking at the petitioner, who was standing engaged in his conversation, the petitioner suddenly fell over backwards and struck his head upon the floor. Hughes immediately went to his assistance as Mrs. Matovski, being a woman not well herself, was unable to render aid. Hughes saw that the petitioner’s tongue was out between his teeth and he was groaning. The witness, Hughes, further testified that there was not, in fact, any steps from, the entrance to the greenhouse to the floor of the greenhouse. The witness, Mrs. Matovski, was not produced, apparently, because her ill condition prevented her production. The veracity of the petitioner under cross-examination was discredited to some extent. In order to satisfy myself as to the actual physical conditions at the place where the accident occurred, I personally viewed the greenhouse and the entrance thereto, and found that there is, in fact, no steps, as described by the petitioner, but on the contrary, the entrance is as described by the witness, Hughes.

3. The burden of proof is on the petitioner to satisfy the court that the injuries sustained by the petitioner resulted from an accident. It is his burden to establish this by the greater weight of the evidence before he is entitled to recover. In this case, after carefully weighing the testimony, I find that the petitioner has not established by the greater weight of the evidence his injuries resulted from an accident, and that he was not injured in the manner he describes. Having failed to establish his right to compensation by the degree of proof 'prescribed by law as stated above, I am compelled to dismiss his petition for that reason.

It is therefore, on this 30th day of March, 1927, ordered, adjudged and decreed that the petition of the petitioner be and the same hereby is dismissed and for nothing holden.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THODER JEDMACZ, PETITIONER, v. W. H. GAHAGAN COMPANY, INCORPORATED, RESPONDENT.
    Petitioner, a Laborer Doing Heavy Work at Night, While Drying His Clothing After Exposure, Fell Asleep in Front of an Open Fire and Thereby Exposed His Clothing to Flames —He was Burned, Resulting in Permanent as well as Temporary Disability — Held, That the Injury Resulted in Course of Employment.
    On petition, &c. On determination, finding of fact and rule for judgment.
    Eor the petitioner, David Boshein.

    For the respondent, Bertis 8. Horner.

   * * * *;< # *

On December 9th, 1925, the petitioner was employed by the respondent at a weekly wage of $40 as a laborer in and about its business of dredging, and while so engaged in the course of his employment at Port Newark, New Jersey, petitioner was burnt and sustained injury to his left arm; that the respondent had due knowledge of the occurrence thereof.

It appears from the testimony of the petitioner and of the several witnesses on his behalf, that the petitioner began his employment at four o’clock in the afternoon of December 8th, 1925, which employment or shift was to continue for sixteen hours up and to eight o’clock in the morning of December 9th, 1925. The weather was extremely cold and the petitioner had been engaged in heavy manual labor. He continued working until shortly after midnight when with the other members of his crew, together with the foreman, built a fire in the out-of-doors, preparatory to drying their clothes and other wearing apparel which had become heavily wet due to the atmospheric conditions and nature of the employment. The petitioner and other men were about this fire. After sitting down, the claimant unconsciously dozed off and fell asleep, and a few minutes thereafter awakened finding himself afire. I find as a matter of fact that the falling asleep was a natural occurrence in the case of a man who was engaged in his type of work for the whole evening in the cold and at the time was sitting in a hot place.

Petitioner was assisted and aided by a fellow-workman who was one of the petitioner’s witnesses at this hearing and by the foreman who sent the petitioner to his home. The petitioners’ relief man on the day shift also testified in his behalf, and stated how he found him missing the next morning and bis clothes in the shanty on the respondent’s premises at Port Newark, New Jersey, with the flesh still clinging to the burnt coat in the shack in which he, petitioner, had changed his clothes.

The téstimony of the respondent attempted to show that the petitioner was not in the emplojr of the respondent at the time of the accident, but I find, as a matter of fact, upon all the testimony in this case, that the petitioner was at the time of the accident in the employ of the respondent company.

The case of Dixon v. Andrews, 91 N. J. L. 373; 105 Atl. Rep. 410, confirmed by the Court of Errors and Appeals in 92 N. J. L. 512; 105 Atl. Rep. 893, is the leading case in New Jersey, and together with the case of Bryant v. Fissell, 86 Id. 460, held that an accident arises out of and in the course of the employment if it occurs while the employe is doing what a man so employed may reasonably do within the time in which he is employed, and at a place where he may reasonably be at that time.

The duties of the claimant were such as subjected him to exposure to the elements in the open spaces known as Port Newark, in a- cold winter’s night, and he had been working for approximately eight hours at the time. Claimant sat down with the rest of his crew and with his foreman, exchanging stories, resting and drying their clothes and other matters of personal interest. After sitting down, the claimant dozed off and fell asleep, and a few minutes thereafter was awakened by finding himself afire. The falling asleep of the, claimant was natural in the case of a man who was engaged at hard work for the whole evening in the cold, and at the time was sitting in a hot place. The falling asleep was not the result of any conscious effort on the part of the claimant, but came simply from drowsiness which came over him as a result of his previous exertions to which he had been exposed and the heat in which he was sitting. The fire resulted in the burns from which the petitioner is now suffering. The petitioner was injured while on duty in his work, and while waiting for an opportunity to continue the services of employment. The accident occurred when the claimant was at a place where he might reasonably be, there was no turning aside on his part, no attempt to serve ends of his own. The fact that he fell asleep under the circumstances does not bar his claim.

The man’s duties involved periods of leisure during which he was expected to kill time as best he might. The acts of ministration to himself, such as relieving his hunger or protecting himself from excessive cold, and drying his clothes, performance of which while at work are reasonably necessary to his health and comfort are incidents to his employments, and acts of service therein within the Workmen’s Compensation act, consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities. 1 Hon. 379, 384. To protect himself from undue or unnecessary exposure to the cold was a duty that he owed to his master as well as to himself, and it does not follow that he left his master’s employment because he negligently dozed off and was burnt. I find that the petitioner has sustained an accident within the meaning of the Workmen’s Compensation act of New Jersey, which accident arose out of and in the course of the petitioner’s employment with the respondent.

The petitioner was compelled to remain out of work for a period of four months as a result of the injuries sustained by the accident.

It appears from the testimony that the petitioner was treated by Dr. Joseph Michalski for injuries to his arm immediately after the accident, and continued treating him for a period of approximately four months. He found the petitioner suffering from a second degree burn to his left arm and elbow, extending anteriority and posterially four inches above the elbow and three inches below the elbow. The physician at the time found the petitioner in terrific pain and carrying a high fever. Dr. Michalski estimated the disability between twenty-five and thirty per cent, loss of the arm, and his charge for services was one hundred and eighty dollars ($180), which I find is a reasonable charge.

Dr. Max Singer examined the petitioner, and from his testimony he concluded that the petitioner was suffering irom twenty-five per cent, permanent disability of the left arm.

The respondent’s physician, Dr. Shepard, examined the petitioner at the date of trial and testified to the loss of fifteen to twenty per cent, of partial permanent disability of the left arm.

Erom all the testimony, I find, as a matter of fact, that the petitioner sustained a second degree burn to the left arm extending four inches above the elbow, and three inches below the elbow, the said scarring of the skin which is still plainly visible, and the adhesion to the muscles, and I find that the petitioner sustained temporary disability from December 9th, 1925, to and including April 1st, 1926, a period being sixteen weeks, for which the petitioner is entitled to receive temporary disability for a period of sixteen weeks at the compensation rate of $17 per week, and I further find that the petitioner sustained partial permanent disability to the extent of twenty-five per cent, of the usefulness of his left arm for which the petitioner is entitled to receive compensation for a period of fifty weeks at the rate of $17, beginning April 1st, 1926.

I further find and determine as follows:

1. That on December 9th, 1925, the petitioner was in the employ of W. H. Gahagan Company, respondent herein set forth.

2. That the petitioner on December 9th, 1925, met with an accident arising out of and within the course of his employment with the respondent, that the injury was not self-inflicted, nor was intoxication the proximate cause thereof.

3. That the respondent had due knowledge of the said accident and that the petitioner was at the time earning $40 per week.

4. As a result of the said accident the petitioner was injured and sustained temporary disability during the period of sixteen weeks at the compensation rate of $17 per week.

5. 1 And as a result of the said accident the petitioner was injured and sustained injuries which are of a permanent nature, and, as a result thereof, sustained an impairment to the extent of twenty-five per cent, partial permanent disability of the left arm, being a period of fifty weeks at the compensation rate of $17 per week, being a period from April 1st, 1926, to March 25th, 1927.

It is therefore on this 16th day of March, 1927, ordered, that judgment be entered in favor of the petitioner and against the respondent for temporary disability from December 9th, 1925, to April 1st, 1926, being the sum of two hundred and seventy-two ($272) dollars, being compensation due for temporary disability; and it is further

Ordered, that the respondent pay to David Roskein, Esq., attorney for the petitioner, the sum of $100 for services rendered in connection with the filing of the formal petition, and $50 payable by the petitioner; and it is further

Ordered, that judgment be entered in favor of the petitioner and against the respondent, and that the respondent hereby pay to the petitioner compensation hereby awarded him for permanent disability sustained by him for a period of fifty weeks from April 1st, 1926, to and including March 2oth, 1927, in the sum of eight hundred and fifty ($850) dollars, being twenty-five per cent, of partial permanent disability of the left arm, being equivalent to fifty weeks at the compensation rate of $17 per week; and it is further

Ordered, that the respondent pay the medical bills of the petitioner incurred as a result of this accident, due to Dr. Joseph Michalski in the sum of one hundred and eighty ($180) dollars; and it is further

Ordered, that the respondent pay to the petitioner on behalf of expenses incurred by the petitioner for medical testimony in this matter in the sum of $75.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LUIGI CALASURDI, PETITIONER, v. LETTIERI & BELLIZZA, INCORPORATED, RESPONDENT.
    Injury to Head of Employe Through the Fall of a Derrick — Extent of Injury in Question — Doctors Examined, and Temporary and Twenty Per Cent. Permanent Disability Allowed.
    On stipulation, .determination and rule for judgment.
    Eor the petitioner, Samuel Greenstone.

    Eor the respondent, McDermott, Enright & Carpenter.

   1. On or about July 7th, 1926, the petitioner, Luigi Calasurdi was employed by Lettieri & Bellizza as a laborer at Jersey City, New Jersey, and on or about the day in question the petitioner sustained an injury from an accident arising out of and in the course of the employment, when a derrick used in hoisting rock from a trench fell into the trench, striking the petitioner on the head. The accident and employment are admitted by the respondent.

2. At the time of said • accident, the petitioner was receiving wages of $36 per week.

It is claimed by the petitioner, as set forth in his petition, that he sustained a concussion of the brain, and that at the time of the filing of said petition, March 11th, 1927, had not been able to return to work.

It is contended by the respondent, as set forth in the answer, that the temporary disability ceased on or about November 22d, 1926, and that the petitioner was not suffering from any permanent disability.

3. The oidy question involved being the question as to whether the petitioner was disabled, and if so, the extent of his disability. The doctors of the respective parties agreed to compromise upon temporary disability for a total of twenty-five weeks and twenty per cent, of total disability.

The testimony of Dr. William J. Arlite was introduced. He testified that the petitioner had sustained an injury to the parietal region; that he had examined the X-rays and was not convinced that there was a fracture; that the man had made a good recovery and that in his opinion twenty-five weeks’ temporary and twenty per cent, of total was a very fair compromise to the petitioner. Dr. Robert E. Sheehan, of New York City, a neurologist, testified that he examined the petitioner thoroughly on December 29th, 1926; that there was no external evidence of any injury except a one-inch linear scar of the scalp, three-quarters of an inch above the upper margin of the left ear, a scar across the top of the left ear, a small scar behind the right ear and three scars over the upper part of the left scapula. He testified that there were no neurological symptoms at that time; that the man had made a very good recovery; that he examined the X-ray films before taking the stand and that he was not convinced that there was any evidence of a fracture. He testified that in his opinion the man was not exactly suffering any permanent disability and that if twenty per cent, permanent was paid, it would he purely on a compromised basis and a very liberal settlement for the petitioner. Dr. Andrew G. Rnoff and Dr. Wallace Ilurff both testified that they had examined the petitioner and that in their opinion the settlement proposed was a very fair one.

4. In view of this testimony, I find the petitioner is entitled to temporary disability from the date of said accident, July 7th, 1926, for a period of twenty-five weeks, less three weeks heretofore paid by the respondent, and that he is entitled to compensation for permanent disability on the basis of twenty per cent, of total or one hundred weeks at the rate of $17 per week.

It is therefore, on this 17th day of June, 1927, on motion of Samuel Greenstone, attorney for petitioner, ordered that judgment be entered in favor of the petitioner and against the respondent for compensation for temporary disability of twenty-five weeks, less three weeks heretofore paid, or a total of twenty-two weeks at $17 per week, and permanent compensation for twenty per cent, of total, or one hundred weeks at $17 per week.

It is further ordered that the respondent pay the doctors for the petitioner, Dr. A. C. Ruoff the sum of $50 and Dr. Wallace Hurff the sum of $50.

It is further ordered that the respondent pay the petitioner’s hospital bills at the Jersey City Hospital, amounting to $77.

It is further ordered that the attorney for the petitioner receive as compensation a fee of $300, of which the petitioner is to pay $100 and the respondent $200.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTONIO MARABUTO, PETITIONER, v. BALBACK SMELTING AND REFINING COMPANY, RESPONDENT.
    Appendicitis — Petitioner Alleges as Cause Three Accidents Received in Rapid Succession — Evidence That Either Accident was Reported Wanting — Hospital Records do Not Indicate Traumatism — Held, Appendicitis Not the Result of Accident Received During Employment.
    On determination of facts and rule for judgment.

      Eor the petitioner, Charles Becker.

    For the respondent, McDermott, Enright & Carpenter (Carl S. Kuebler, of counsel).
   # ❖ ❖

The petitioner, through his attorney, filed a petition alleging that on September 7th, 1926, about nine-thirty A. it., he was employed by the Balback Smelting and Refining Company at its plant in Newark, and that while pushing a kettle of molten metal on a push cart, his foot slipped upon the slippery floor and he fell backwards upon certain metal ore, injuring his hack and side, aggravating and causing the development of acute appendicitis, which necessitated an operation.

It was contended by the respondent that the petitioner was employed by it but that the petitioner did not sustain any accident arising out of and in the course of employment; that the attack of appendicitis alleged to have been suffered by the petitioner was the result of natural causes, and that the employer never received notice of any accident, as required by the Compensation act and amendments thereto.

The testimony of the petitioner, Antonio Marabuto, was to the effect that at about nine-thirty a. vr. on September 7th, 1926, together with another employe, he was pushing a large pot of molten metal when his foot slipped and he fell hack on an iron pipe, striking his back; that about three-quarters of an hour later he was taking a crowbar out of a pipe, and while hitting the crowbar with a sledge hammer he slipped and fell backwards striking his hack against some iron bars. About a half hour later, he testified, that he was loosening some nuts and bolts on the blast furnace when some air blew in his nose and throat and he spit blood and could not work any longer, lie does not give very much detail as to any of these three accidents. As to two of these incidents he produces the fireman, Joseph Rodriquez, to corroborate his testimony, but 1 do not find that the corroboration is very strong. It lacks detail and I believe from the evidence, especially as to the first alleged accident, that Rodriquez was not in a position to have seen any accident which occurred to Marabuto, as he himself was admittedly busy filling pots from a box of molten metal.

To me it is not only unusual but unbelievable to believe that the petitioner could have sustained three accidents in such a short space of time. It is also unbelievable to me that he would fall backward while pushing one of these pots of molten metal. He would naturally be inclined forward when pushing and it is more reasonable to believe that he would have fallen forward.

There is nothing whatsoever in the case to indicate that there were any marks of injury upon his body; that his back, side or abdomen had been injured by a fall and contact with iron pipes or bars. It seems to me that there would have been some evidence to indicate such a fall.

I listened very attentatively and have considered very carefully the testimony of the foreman, Emanuel Costa, was impressed with his frankness and the clearness of his testimony. He is a Spaniard and testified at quite a disadvantage because no interpreter was present, and I feel that his testimony was truthful in every way and am still further convinced by it that no accident was ever reported to him. I feel that if the petitioner had sustained three accidents in one morning, as he claims, he would have reported one, if not all of them.

The testimony of the superintendent, Mr. Zahn, shows that he did not have any report of any accident and I am also impressed with the testimony of Mr. E. A. Work, the adjuster for the United States Fidelity and Guaranty Company, the carrier in this case, who testified that the petitioner called to see him.with an interpreter and spoke to him through an interpreter, and that the interpreter told him that Mr. Marabuto could not convince him that he had sustained an accident while in the employ of Balback Smelting and Befining Company; that Dr. Spinner attributed the appendicitis to his inhaling dust in connection with his work.

I have had previous experience with claims of traumatic appendicitis and do not believe from such experience and from the evidence in this case that the attack of appendicitis suffered bjr the petitioner was the result of any traumatism. In my opinion traumatic appendicitis is only the result of a severe trauma to the abdominal wall and there is no such evidence in this case. Dr. Spinner himself did not secure any history of traumatism and Dr. Sprague, who actually performed the operation, testified positively and clearly that this was a plain case of appendicitis. There was nothing unusual about it, and that in his opinion it could not have been produced by traumatism, but simply by natural causes.

T do not find that the petitioner has suffered from any back disability as testified to by Dr. L. A. Cahill and Dr. Shapiro. Dr. Brothers and Dr. Vanderhoff testified that the petitioner, on the date of the hearing, was not suffering from any permanent disability whatsoever. It seems to me that Dr. Sprague gave a satisfactory explanation for any pains in the back which the petitioner may have had. The doctor stated that the pains in the back are due to the breaking of the curve of the spine while the patient is on the operating table. In the opinion of Dr. Sprague such pains disappear a period of months after the operation.

Considering all the testimony in this case, I therefore find and determine as a matter of fact that Antonio Marabuto did not sustain any accident arising out of and in the course of his employment on or about September 7th, 1926. I find that the attack of appendicitis and the result of the operation performed upon the petitioner was entirely the result of natural causes; that any pain or trouble which the petitioner may have had with his back was the result of the appendicitis operation and not the result of any accident, and I further find that the employer, Balbaek Smelting and Eefining Company, did not receive written notice of any accident on September 7th, 1926, as required by the Workmen’s Compensation act and amendments thereto.

It is therefore, on this 16th day of July, 1927, on motion of McDermott, Enright & Carpenter, attorneys for respondent, ordered that judgment be entered in the above entitled cause in favor of the respondent and against the petitioner, with costs to be taxed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CONCETTA DI PALMA, BY MATTEO RICCO, ROYAL CONSUL AGENT OF ITALY, INTERVENING IN HER BEHALF, AND MARIA DI PALMA AND DOMENICO DI PALMA, BY MATTEO RICCO, ROYAL CONSUL AGENT OF ITALY, THEIR NEXT FRIEND, PETITIONERS, v. NATIONAL SILK DYEING COMPANY, A CORPORATION, RESPONDENT.
    Jurisdiction — Issue Postponed Indefinitely Pending the Return of Interrogatories Sent to Italy — Issue Finally Brought to Hearing After More Than One Year Had Elapsed — Held, Upon Objection of Respondent, the Bureau Had Lost Jurisdiction.
    On petition for compensation. On order dismissing claim petition.
   It appearing that the above claim petition was filed February 3d, 1926, and thereafter answer was filed by the respondent March 26th, 1926, and notice sent by the compensation bureau, setting the case down for hearing at Paterson, April 1st, 1926. The case was not tried on that date, a letter being received by me dated March 27th, 1926, from the attorney for the petitioner, requesting that the case be adjourned indefinitely until such time as interrogatories which were being sent to Italy were returned. Thereafter the attorney for the petitioner served interrogatories to take testimony in Italy on or about March 29th, 1926 and the respondent returned the same, together with cross-interrogatories, April 7th, 1926. Ho step had been taken in the case since that date until June 18th, 1927, when notice was issued by me, at the request of the attorney for the petitioner, setting the case down for hearing in Paterson, Thursday, June 23d, 1927. The respondent immediately objected to proceeding with the case on the ground that no step having been taken in the case for a period of over a year, and the petitioner having failed upon the day fixed for hearing to continue it by stated adjourn-merits in regular manner upon the records of the court, either by consent of the defendant or by application upon notice to the defendant, this bureau has lost jurisdiction of the case and the petitioner must be dismissed. The authority for this contention is Ringwalt Linoleum Works v. Theresa Liquor et al., 89 N. J. L. 452, where the New Jersey Supreme Court held in a similar situation that jurisdiction of the case was lost by permitting the lapse of a year under similar circumstances. The court there said:

“The manifest and clear intent of the act is to secure that inexpensive and expeditious determination of the controversy which theretofore was claimed to be a fatal defect in existing legal procedure.

“The procedure followed in the case at bar obviously violates the spirit of the act. The proceedings being entirely statutory, it was incumbent upon the petitioner to present her ease upon the day fixed for hearing, or to continue it by stated adjournments in regular manner upon the records of the court, either by consent of the defendant or by an application made upon notice to the other side, so that the defendant would have notice of the proceeding, and be cognizant of the status of the case. To countenance this application after twelve months have expired since the last regular step was taken in the proceeding is, in effect, to ignore the very purpose of this legislation, and to give to the party in laches an advantage which he could not have attained under legal procedure as it existed anterior to the enactment.”

Upon consideration of the matter and the jurisdiction of the bureau being objected to by the respondent, I am forced to conclude that the case at bar is within the decision cited, supra. It is therefore, on this 26th day of July, 1927, ordered that the said petition be and the same hereby is dismissed and for nothing holden.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM H. SINGERHOFF, PETITIONER, v. WESTERN ELECTRIC COMPANY, INCORPORATED, RESPONDENT.
    Traumatic Epilepsy as Result of Being Thrown Backward While Engaged in Work Assigned Petitioner, Striking on His Head —Respondent’s Allegation That it Had Not Had Sufficient Opportunity to Examine Petitioner Not Sustained.
    On findings of fact, determination and rule for judgment.
   The above matter having come on for hearing on December 31st, 1926, January 14th and January 20th, 1927, and having been submitted to me for determination, I hereby find and determine as follows:

A petition was filed by William H. Singerhoff, of 14 Thayer street, New York City, praying for compensation for injuries alleged to have been sustained as a result of an accident which occurred on March 5th, 1925. Said petition was filed on May 14th, 1926, compensation having been paid up to and subsequent to the filing of the petition. The petition alleged that while the petitioner was loading a standing machine with reels of wire, so as to have the machine in readiness for speed and electrical test of the motor, the machine or drum of the machine became unbalanced; that a man and the petitioner had to revolve said drum to a loading position by hauling, and that as both were tugging away, all at once the machine became unbalanced and petitioner was thrown backward approximately ten feet, landing on his head, and his back struck the truck.

An answer was filed by respondent, in which the happening of an accident on March 5th, 1925, was admitted, and in which the respondent denied any knowledge or information sufficient'to form a belief that the claimant is suffering from any disability as a result of the injuries sustained on March 5th, 1925. Respondent set up a further defense in that it claimed the petitioner refused to permit a thorough medical observation by a specialist, and that it was impossible to fix the permanent disability, if any, without observations.

I have carefully considered the testimony and the briefs of the attorneys for the respectivo parties. I find that William II. Singerhoif was employed by the respondent on March 5th, 1925, at a salary of $35.91 per week, and that he sustained an accident arising out of and in the course of his employment on March 5th, 1925, and that the petition in this case is filed within time because payments of compensation were made up to and subsequent to the filing of the petition herein, compensation payments having been made on September 11th, 1926. The remaining question to be determined from the petition was whether the petitioner was still suffering disability as a result of said accident, and if so, the nature and extent of such disability.

After careful examination of the testimony, I find that the petitioner is still suffering from disability occasioned by the accident of March 5th, 1925, and conclude that such disability is due to the fact that he is suffering from what is known as post traumatic epilepsy following an injury.

The testimony shows that the petitioner was struck on the back of his head; that he did not receive immediate medical attention, but was first treated at the plant on March 20th. He was treated at various times at the plant hospital but his condition did not seem to improve, and, in fact, seemed to grow worse. He testified that one Saturday night while walking with a friend in New York City, he was overtaken by a spell of some kind and taken to the Harlem Hospital. The petitioner could not remember what happened that Saturday night. He returned to the plant the following week and was immediately ordered to he seen by Dr. Wolfs, and after an examination by him he returned to his home. About a week later, he testified, he had another similar spell. The respondent placed him in St. Barnabas Hospital for observation, where he remained from October 15th to November 11th. During all this period of time Dr. Wolfs visited him, Dr. Beiing visited him twice and Dr. Herold visited him at different times. The testimony shows that he left this institution of his own accord and went to St. Luke’s Hospital in New York, where Dr. Pardee and Dr. Allen were in attendance. He remained in St. Luke’s Hospital from November 13th to December 15th, during which period of time his tonsils were removed, as had been previously recommended by Dr. Beling. He had a lumbar puncture, blood count and a Wasserman test, also other tests. While in St. Barnabas Hospital he had attacks reported on the hospital records as semi-conscious spells. While in St. Luke’s Hospital he had at least two attacks or spells, during which he had an unconscious interval. The testimony of Dr. Theophalus Allen shows that he, though a young physician, had been in the Bloomingdale Hospital at White Plains, and has had considerable experience in observing epileptic conditions. He described this attack which he saw in St. Luke’s Hospital, and I find that his observation and description of this attack is particularly important and useful in the determination of this case. Dr. Allen described this attack as follows:

“Yes, he was seen by me a few moments or perhaps two minutes after the convlusion had begun. At that time he was unconscious. He was moving his arms and legs. His head was turned to the left and his eyes open, and eyeballs rolled upwards to the roof. I thought that the left eye was going, was moving a litle more than the right. While I was observing him these movements ceased, the patient became relaxed, at that time he was unconscious, a period of unconsciousness lasted about three or four minutes more, and then I was able to arouse him but he was dazed and confused and would not talk.”

Dr. Allen diagnosed his condition as traumatic epilepsy, based on the history, X-ray findings and the convlusions, as well as the spinal fluid test. He testified that other possibilities were ruled out by the tests that were made. He also testified that the same convlusion was observed by one of the nurses and by an orderly.

I find that the diagnosis of Dr. Allen is very ably corroborated by the testimony of Dr. Bernard Sacks, a neurologist of high standing and much experience. Dr. Sacks examined Mr. Singerhoff, and from his examination and the description of the attack witnessed by Dr. Allen, he concluded that the petitioner is suffering from post traumatic epilepsy following an injury. I am impressed by the reason given by Dr. Sacks, concluding that this is traumatic epilepsy. He concludes this to be the diagnosis because there was no history of any previous convulsions during his childhood and no evidence of any convnlsons previous to the accident, because fully ninety-five per cent, of the convulsions occurring in middle life, and not dne to heredity, are due to accidents. Dr. Sacks concluded that the tests made at the hospital out-ruled other conditions; that the fact that his eyes remained open through the attack and rolled upward was indicative of general epilepsy, together with the fact that the duration of the attack was short. I am impressed by the testimony of Dr. Sacks also from the fact that it is very difficult for a physician to have the opportunity to observe an attack, and that in this particular case the attack was observed by a reputable doctor, to wit, Dr. Allen. I am impressed also by the fact that although Mr. Singerhoff went to St. Luke’s Hospital of Ms own accord, his care at that institution was assumed by the western electric and the bill paid by that company, and that they did not produce the evidence secured there, but left it to the petitioner to call the doctor who observed him in that institution. Dr. Sacks testified as follows :

“I am willing to say now in all my poverty of person, this man is a definite epileptic.”

Dr. James E. Hens, a man who has specialized six years in neurology and is the chief neurologist in Lennox Hill Hospital, shows from Ms testimony that he took a great deal of interest in this case, examined and treated Mr. Singerhoff, and that he is also of the opinion that the petitioner is suffering from traumatic epilepsy and that he is eighty to eighty-five per cent, disabled, based upon the standpoint of ability of a normal man.

Dr. Herold was produced by the respondent. He attributed the petitioner’s condition to hysteria. He seemed to have been interested in treating this case, and admitted that the petitioner was continually getting worse. I cannot believe that the petitioner’s condition at this time is due to hysteria. I observed him carefuliy while he was on the witness-stand and did not observe any symptom which would lead me to believe such conclusion. Dr. Herold saw this man come out of one attack at St. Barnabas Hospital, but he did not see him in the early stages of that attack and I do not believe that, he saw enough of the attack to adequately judge what he was suffering from.

Dr. Christopher O. Beling attributed his' condition to infected tonsils. -These were removed at St. Luke’s Hospital. Dr. Beling never saw him after the tonsils were romeved, and I find nothing in Dr. Beling’s testimony that would convince me that such condition as he is now suffering from could be attributed to infected tonsils, which have since been removed.

Dr. Jean E. Wolfs admitted that there was something the matter with Mr. Singerhoff; that he was suffering from disability when examined by him and when referred to Dr. Beling. I find that the attorney for the respondent did not venture to ask any of his doctors hypothetical questions to disprove traumatic epilepsy based upon all the facts in evidence.

I therefore find that the petitioner is suffering from traumatic epilepsy as a result of the accident on March 5th, 1925,,arising out of and in the course of his employment with the respondent, and that his disability is equal to seventy-five per cent, of total. I find that he has been paid all temporary compensation to which he is entitled, and that he is not entitled to be reimbursed for the services of doctors which he incurred at his own expense.

The respondent contended that he did not have the proper opportunity to observe the petitioner and to determine what 'he was suffering from. I do not find any justification in this defense. He had the opportunity to observe the petitioner for about a month in St. Barnabas Hospital and a similar period in St. Luke’s Hospital. The petitioner was also under the observation of Drs. Herold, Wolfs and Beling. I do not find the petitioner ever refused an examination and I do not find anything in the Workmen’s Compensation act which would compel him against his will to submit to further imprisonment in a hospital to be observed by the respondent.

It seems to me there was sufficient evidence as to his condition to be drawn from the confinements in the two hospitals.

It is thereupon, on this 22d day of June, 1927, on motion of McDermott, Enright & Carpenter, attorneys for the petitioner, ordered that judgment be entered in favor of the petitioner and against the respondent for compensation for seventy-five per cent, of total disability, or three hundred and seventy-five weeks at the rate of $17 per week, to be paid from September 11th, 1926, the date to which the compensation has already been paid.

Further ordered that the respondent pay to the petitioner’s medical experts the following amounts: To Dr. Theophalus Allen, $50; Dr. Bernard Sacks, $50; Dr. James F. Hens, $50.

It is further ordered that the attorneys for the petitioner receive as a counsel fee for services rendered heretofore in this case the sum of $1,000, of which $500 is to be paid by the respondent and $500 by the petitioner.

It is further ordered that the respondent be ordered to deduct from the compensation payments, which will at the present time be due to the petitioner, the sum of $500, representing the portion of the counsel fee to be paid by the petitioner, and to draw a check to the attorneys for the petitioner in said sum in addition to the $500 which the respondent is to pay on said counsel fee.

Charles E. Corbin, Deputy Commissioner.


author: Chables E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIA HESS STEWART, PETITIONER, v. HANNIBALL COAL COMPANY, A CORPORATION, RESPONDENT.
    Jurisdiction Lost Through Failure to Bring Issue on for Hearing.
    On petition for compensation. On order dismissing claim petition.
   Application having been made before me upon notice duly served and filed by the respondent for an order dismissing the claim petition in this matter due to lack of prosecution, and both sides appearing by their • respective attorneys, it appeared that the petitioner or her representative has taken no step in the cause since the filing of the petition December 30th, 1925.

It is on this twenty-ninth day of July, 1927, ordered that the claim petition be and the same hereby is dismissed and for nothing holden on the ground that this bureau has lost jurisdiction of the cause due to the failure of the petitioner or her attorney to bring the case on for hearing.

Chables E. Corbin, Deputy Commissioner.