Frayler v. United Cork Co.

182 A. 273, 14 N.J. Misc. 91, 1935 N.J. Misc. LEXIS 51

Opinion

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While the petitioner was in the employ of the respondent as a laborer and while engaged in his duties, his right foot became caught in wire while binding a bale of cork and injured his right leg and at the time of the accident the petitioner was in receipt of wages in the sum of $16 per week.

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The matter coming on to be heard the court took testimony for the purpose of determining whether the petitioner actually did suffer an accident while in the employ of the respondent, and whether he gave notice to the respondent pursuant to the statute in such cases made and provided and the court also heard testimony for the purpose of determining whether the petitioner’s alleged injuries pre-existed the accident. The respondent alleged as a matter of defense that the petitioner suffered from a pre-existing condition that was in no way affected by the alleged accident on November 21st, 1934. The respondent produced medical and lay witnesses. The lay witnesses in their testimony referred to the petitioner as having complained of rheumatism, but were not certain as to same being the left or right leg. The testimony of the medical experts of respondent was to the effect that from the X-rays as well as of their own opinion that the condition had pre-existed and could not result from the accident as described and was in no way aggravated. The petitioner’s medical expert claimed the condition could result from the accident. Having considered the testimony the court was of the opinion that where the respondent enters a defense of a previous condition the respondent must prove such condition to have existed without any reasonable doubt. To merely state that in the opinion of the experts it did exist is not sufficient.

I therefore find and order * * * that judgment be entered in. favor of the petitioner for permanent disability of twenty-five per cent. (25%) of the right leg. * * *

John C. Wegner, Referee.