
    GEORGE T. NEWELL, Jr., INCORPORATED, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. THE WORKMEN’S COMPENSATION BUREAU OF THE STATE OF NEW JERSEY, HOLDEN BY W. H. STUBB, ESQUIRE, DEPUTY COMMISSIONER OF LABOR, RESPONDENT.
    Decided November 12, 1931.
    Eor the rule, Crawford Jamieson.
    
    
      Contra, V. Claude Palmer.
    
   Bodine, J.

The compensation bureau awarded compensation from December 28th, 1928, to February 10th, 1931, a period of one hundred and ten weeks and four days, at $20 a week.

Burton Kipple, age sixty-six, filed Ms application for compensation. lie based his claim upon the fact that while in the course of Ms employment he raised a can of ashes and got a sharp pain in his back.

Kipple having died before the hearing before the commissioner, the only testimony of the occurrence is by a fellow-workman, Peter Leone, whose pertinent testimony is as follows: “We got half way up the steps and he hurt his hack-lie almost lot go o l the can but he held on to it, but almost dropped it. 1 asked him if he could make it the rest of the way up and he said he could. * * * Q. Did he come hack to work after that time? A. Yes, he worked about a week, I guess, a week.” The date of the occurrence is fixed as of December 24th, 1928. There was testimony that shortly thereafter the man did not work and suffered pain in his back.

The medical testimony, in behalf of the petitioner, was given by Dr. Eugene Coffee, an osteopath, who first attended the petitioner on May 11th, 1929. He found an ankylosis of the lower dorsal and upper lumbar vertebrae of the spine, and continued to give osteopathic treatments until November 2d, 1929, when he advised the petitioner that he could find possibly more help in other treatments. The doctor testified that the injury which he found could be due to a severe crushing strain.

The defendant called two witnesses: Dr. Maurice Charnock, who examined the petitioner on Eebruary 1st, 1929, and attributed his condition to a chronic arthritis of the spine due to a focal infection, and testified the condition had been of slow development and had existed prior to December 24th, 1928. He was corroborated by Dr. Eichard B. Ernest.

The question is, therefore, whether there was sufficient proof of an accident arising out of and in the course of the employment to justify the finding of the commissioner. These findings are not to be lightly disturbed. Mountain Ice Co. v. Durkin, 144 Atl. Rep. 6; Berman v. Levenstein, 154 Id. 110.

The employer had, if there was an accident, the burden of proving that the back hurt because of the previously existing arthritis. Atchison v. Colgate & Co., 128 Atl. Rep. 598. There was, however, not proof of an accidental occurrence beyond Leone’s testimony referred to. Prosecutor contends that such testimony shows no accident. There is no proof that the man was doing anything unusual or that anything transpired save a complaint about a sore back while carrying the ashes from the cellar. It is suggested that this proof is as consistent with the prosecutor’s theory that the man was a vicim of arthritis and had been such for a long time as with the petitioner’s theory that an accident occurred when he suffered from a sharp pain in his back when he raised a pail ©f ashes. Dr. Coffee called the injury an ankylosis resulting from a severe crushing strain, but the proofs show also that it could have been caused by arthritis.

It seems that on the proofs adduced the defendant is entitled to a writ. Johnson v. Ulster Iron Works, 153 Atl. Rep. 95.

A writ of certiorari will be allowed returnable before the court on the third Tuesday in January.  