re: Lylo v. General Motors Corp. - C.P. 99-028937

Gentlemen:

This case involves the interpretation of the 48 hour notice requirement which applies to the reporting of a traumatic hernia pursuant to N.J.S.A. 34: 15-12 (23). The facts are not in dispute. Petitioner alleges that on June 1, 1999 while in the course of heavy lifting at work he "felt a pain in my right side by my groin". He did nothing about it and did not observe any lifting or other physical restrictions over the course of the next several days. On June 13th, nearly two weeks after the above incident, petitioner stated that he "was getting a lot of pain" in his groin area and found that he had a "bump down there." The following day he reported the matter to the respondent's plant doctor who gave an initial diagnosis of inguinal hernia.

Petitioner argues that he has met the reporting requirements of Section 12 (23) by virtue of the fact that he gave notice of his condition to a representative of the respondent (Dr. Quail, M.D., the plant physician) within 48 hours of the time that the petitioner was made aware of his condition, i.e. he felt a bump and later, on the evening of the day that he visited respondent's plant doctor, he saw his personal physician who was the first medical professional to tell him that he had a hernia.

Respondent argues that given the rationale of Brock v. Public Serv. Elec & Gas, 149 N.J. 378 (1997), the 48 hour reporting requirement of Section 12 (23) must be interpreted as written and regardless of whether or not the respondent is prejudiced by any delay in receiving notice of the injury. I agree. The issue in this case is the determination of that point in time at which, to quote my former associate, Judge Feller, the "hernia becomes manifest"...(and) by the exercise of reasonable care and diligence ... is discoverable" and it becomes apparent that a compensable injury has been sustained. Minardi v. Pacific Auto. Corp., 43 N. J. Super. 460, 467 (Law Div. 1957).

The significance of the reasoning applied by Judge Feller becomes apparent when one reviews the Supreme Court's opinion in Salerno v. McGraw-Edison Indus., 59 N.J. 129 (1971), which specifically affirms in principle the result reached by Judge Feller; of further significance is that the critical facts presented in both the Minardi and Salerno are essentially the same as those before me in the case at hand. In each of the three cases we are presented with a worker whose employment included substantial, if not continuous, lifting activity. Further, on a particular day each of the petitioners experienced a "stabbing like" pain in his groin area, but thought nothing of it and continued to work both on that day and for several days thereafter. In each case the petitioner did not learn that he had in fact had a hernia until 12-21 days after the lifting incident which was later found to be the cause of the hernia in question. In concluding that Messrs. Minardi and Salerno were entitled to benefits under the Compensation Statute notwithstanding the fact that more than 48 hours had passed since the lifting incident which caused their respective hernia injuries and their reporting of such injuries to their respective employers, Judge Feller and Justice Francis each found that:

I) a notice period should not begin to run with respect to a latent injury until the injury is

manifested; this interpretation of Section 12 (23) is required given the beneficent social purpose of Chapter 15. See Spindler v. Universal Chain Corp., 11 N.J. 34 (1952). This conclusion is further supported by the fact that the harshness of the pre-1950 provision (Sec. 12x) was deleted in the 1950 amendments and replaced with Sec. 12 (23).

ii) a comparison is made between the 90 day notice provision included in Section 17, which applies to work-related accidents generally, and the 48 hour notice provision applicable solely to

hernia claims. In reviewing the application of Section 17 to non-hernia cases the Supreme Court had earlier taken the position that the notification period did not begin to run until the injury is manifested. Panchak v. Simmons Co., 15 N.J. 13 (1954).

iii) a reasonable construction of Section 12 (23) allows the finding of a compensable injury in the nature of a traumatic hernia so long as the injury is reported to the employer within 48 hours after the injured employee, using reasonable care and diligence, discovers the injury. Salerno, supra.

p.140; Minardi, supra. p. 468. See also, 3 Larson, Workmen's Compensation Law, Sec. 78.42 (a)

(1970).

I also note, in reviewing the Minardi and Salerno cases, supra., that the respective courts found that, in the absence of noticeable swelling and/or advise from a physician, the claimant had no knowledge or reason to know of the existence of a hernia injury.

Given the above finding and direction by a unanimous opinion of the Supreme Court in Salerno, supra., which results in a conclusion that I believe to be fair and reasonable under the social philosophy which is recognized as the basis of the Compensation Statute, see Spindler, supra., I  find that the petitioner in the case at hand has a suffered an injury which I find to be related to his  workplace activities and which was reported to his employer within the 48 hour notice period required under Section 12 (23).

On the issue of causal relationship I accept the credibility of the petitioner both as to the specific lifting activity he cited as such cause and that he did not notice the swelling he presented to Dr. Quail until June 13th, 1999. Note in this regard that the respondent produced no contradictory testimony or evidence on these points. See Ciuba v. Irvington Varnish & Insul Co., 27 N.J. 127 (1958).

Respondent's brief concedes the fact that petitioner has met his burden of proof in the matter so long as one accepts petitioner's testimony as to when he first had knowledge of his injury, i.e. when the swelling or bump was noticeable. Respondent then argues that petitioner's credibility is suspect because it is contradicted by the testimony of Dr. Quail, the respondent's plant physician, in two critical areas. I fail to find the contradiction that respondent asserts.

Petitioner is not a professional person, nor does he have a college degree. He is a laborer on an assembly line, working 10 - 12 hours a day. I find that he went to Dr. Quail, an authorized representative of the respondent, within 48 hours of the time that he became concerned about or recognized that, whether due to increased pain or the appearance of a bump, he had incurred an injury in his groin area. This was the manifestation of his hernia injury, which is the critical point in time in determining compliance with the 48 hour notice requirement of Section 12 (23). There is no question but that petitioner worked without loss of time until June 14th when he was told, by his personal physician (and perhaps by Dr. Quail as well) that he had a hernia. I find it of significance that there is no indication or evidence before me that he was told prior to June 14th that he had a hernia.

Respondent also challenges petitioner's credibility as to how he incurred his hernia. When asked by Dr. Quail when he incurred his injury he gave no particular assignment or activity other than stating that it was "because of the work that I do". See Exhibit R-1. Later, when he testified, he pinpointed his participation in the lifting of a piece of assembly line apparatus weighing 2,400 lbs. as being the activity that caused his initial groin pain. On cross-examination he admitted that he "assumed" a connection between his lifting activity of June 1st and the hernia of which he had no knowledge until June 13th. What respondent counsel failed to note in his letter brief was (I) that there was no contradictory evidence submitted challenging petitioner's statement of lifting activity on June 1st, and (I) that Dr. Quail apparently went to the assembly line on or about June 15th to see petitioner and/or the equipment he had referenced and at that point understood the relationship between petitioner's hernia and his fixture lifting activity of June 1st. T-2/3/00, p.9, l. 24 et. seq.

I will issue an order directing respondent to provide surgical repair of petitioner's hernia, as well as such other benefits as are found to be due petitioner under the provisions of N.J.S.A. 34:15-15 and -38. Legal fees due petitioner's counsel will abate the resolution of petitioner's claim for permanent disability.

Neale F. Hooley
Judge of Compensation