Opinion
Submitted May 25, 1945 —
Decided October 15, 1945.
In this case the testimony did not support the finding of the Supreme Court that the workman suffered an aggravation of a pre-existing hernia condition, and, therefore, its finding is reversed.
On appeal from the Supreme Court, whose opinion is reported in 132 N.J.L. 513.
For the appellant, Stryker, Tams Horner, William L. Dill, Jr., and Thomas Moloney.
For the respondent, Laurence Semel.
Isadore Mandel was an employee of the Federal Shipbuilding Drydock Company. He complained of a right inguinal hernia. He was awarded compensation in the Bureau, which award was reversed on appeal by the Essex County Court of Common Pleas and reinstated by the Supreme Court.
It appears that the workman suffered the injury on June 26th, 1943, in lifting a blower while in the appellant's employ.
R.S. 34:15-12 (x) provides when compensation for such an injury may be recovered. Compensation is allowed only in the following instances: (1) if it resulted from the application of force directly to the abdominal wall or (2) if it resulted under such circumstances that by sudden effort or severe strain five conditions were met. The proofs did not qualify the workman for compensation; he did not comply with R.S. 34:15-12 (x).
The Supreme Court based its opinion upon the theory that the workman suffered an aggravation of a pre-existing hernia condition and, therefore, the case was controlled by Furferi v. Pennsylvania Railroad, 117 N.J.L. 508 . We do not so read the proofs.
The only testimony to support the conclusion of the Supreme Court was given by Dr. Max Kummel. The doctor, cross-examined as to the previous operation, admitted that the previous condition had been cured and that therefore there was no aggravation of a previously existing hernia. His testimony did not support the finding of the Supreme Court. We must, therefore, reverse. For authority for so doing see cases collected in Everson v. Board of Education, 133 N.J.L. 350 .
The judgment of the Supreme Court is reversed.
For affirmance — THE CHANCELLOR, COLIE, WELLS, RAFFERTY, JJ. 4.
For reversal — PARKER, CASE, BODINE, HEHER, OLIPHANT, FREUND, McGEEHAN, JJ. 7.