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Bondar v. Simmons Co.

Decided: June 7, 1952.

JOHN BONDAR, PETITIONER-APPELLEE,
v.
SIMMONS COMPANY, RESPONDENT-APPELLANT



On appeal from Division of Workmen's Compensation.

Hetfield, J.c.c.

Hetfield

This is an appeal from the determination of the Deputy Director of the Division of Workmen's Compensation awarding the petitioner-appellee, John Bondar, hereinafter referred to as petitioner, compensation for 33 3/7 weeks of temporary disability and compensation for partial permanent disability to the extent of 27 1/2 per cent of total, and against the respondent-appellant, Simmons Company, hereinafter referred to as respondent.

It was stipulated that petitioner was in the employ of respondent on February 7, 1951, that his wages were such as would entitle him to the maximum compensation rate, and that respondent had notice of the alleged accident or injury.

Petitioner alleges that he developed a bursitis of his right shoulder from the work in which he was engaged during the course of his employment with respondent and contends that the alleged bursitis constitutes a "compensable occupational disease" within the meaning of the statute. R.S. 1937, 34:15-31, as amended L. 1949, c. 29, p. 103, Sec. 2.

It is the contention of respondent that petitioner has not sustained the burden of proving the causal relationship between

the alleged bursitis and his employment, and that the evidence in the case does not support the finding of the deputy director that petitioner suffered a "compensable occupational disease" as that term is defined in the statute.

The questions presented by this appeal for determination are whether or not petitioner has borne the burden of proving the causal relationship between the alleged bursitis in his right shoulder and the work in which he was engaged during the course of his employment and of establishing that the alleged bursitis of his shoulder constituted a "compensable occupational disease" within the definition of the statute R.S. 1937, 34:15-31, as amended, L. 1949, c. 29, p. 103, Sec. 2.

The testimony adduced at the hearing below discloses that petitioner was 62 years of age and that he was employed by respondent for 23 years. Since 1945 he had been engaged as a filler in the operation of a filling machine used to stuff mattresses and pillows. This machine was motor-driven, but its operation by petitioner necessitated his pushing a lever a distance of less than a foot, and when the filling of the piece was complete, pulling the said lever back again. Petitioner was a piece worker, and it is not disputed that he completed this operation with his right hand between 500 and 700 times in the course of a full working day. The amount of force expended in each operation was described by petitioner's foreman, who was produced as a witness by respondent, as equal to the force which would be necessary to push down a foot clutch on an old-fashioned automobile by hand.

Petitioner was compelled to stop work on February 7, 1951, because of severe pain in his right shoulder and his inability to use his arm. His testimony that his shoulder had been bothering him for about two months prior to February 7, 1951, was corroborated by respondent's own witnesses who stated that petitioner had requested several times to have his job changed so that he would be relieved from pushing the lever on the machine.

Since February 7, 1951, petitioner was attended by several doctors and was a patient at the Memorial Osteopathic Hospital, of Elizabeth, and the Medical Center, at Jersey City. Petitioner's right hand is still swollen so that he cannot make a fist, and he claims that he cannot do the same work he was able to do prior to February 7, 1951.

Dr. Emil Stein, called as a witness on behalf of the petitioner, testified that he examined petitioner on February 7, 1951, which was the same day he stopped working. His examination disclosed no swelling, no bruising and no lacerations, but petitioner complained of intense pain in the shoulder joint and had limited motion of the arm. The doctor made a diagnosis of acute bursitis of the shoulder. X-rays taken at the doctor's request did not show calcium deposits and he expressed no opinion on causal relationship between petitioner's work and the bursitis.

Dr. Calatina Jocson, called as a witness in behalf of petitioner, testified that he operated on petitioner's right shoulder at the Jersey City Medical Center on May 28, 1951. He stated that he did an exploration of the right shoulder and resected the tip of the acromion process and the several ligaments connecting the acromion process and the coracoid process. The exploratory operation disclosed calcific deposits at the tendons of the rotator cuff, and his final diagnosis was degeneration of the rotator cuff, or calcareous tendinitis. It was the doctor's opinion that the degeneration of the rotator cuff tendon was caused by repeated minor trauma aggravating the normal process of degeneration. He stated that when petitioner pushed and pulled the lever of the filling machine the tendon cuff was being impinged upon one side with the head of the humerus and the other side the acromion process and the ligaments within the acromion process and the coracoid process, which the doctor described as "a grinding process that goes on continuously."

Dr. Jacob Heyman, called as a witness in behalf of the petitioner, testified that he examined him on September 28, 1951, and on October 17, ...


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