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Bondar v. Simmons Co.

Decided: November 21, 1952.

JOHN BONDAR, PLAINTIFF-RESPONDENT,
v.
SIMMONS COMPANY, DEFENDANT-APPELLANT



Freund, Stanton and Conlon. The opinion of the court was delivered by Conlon, J.c.c. (temporarily assigned).

Conlon

[23 NJSuper Page 111] The Division of Workmen's Compensation made an award to the plaintiff for disability arising from an occupational disease. The Union County Court affirmed, and the defendant appeals on the sole ground that the disease complained of -- in this case bursitis of the shoulder -- was not an occupational disease under the provisions of R.S. 34:15-30 and 31 (amended L. 1949, c. 29, p. 102, effective January 1, 1950).

The findings of the court below which are substantiated by the evidence may be summarized as follows: The plaintiff was 62 years old and was employed by the defendant for 23 years. For the past five years he had been engaged as a filler in the operation of a machine used to stuff mattresses and pillows. This machine was motor-driven, but its operation required the plaintiff to push a lever a distance of less than a foot and pull it back again. This he did with his right hand some 500 to 700 times a day, and the required force was described as being equal to that necessary to push down a foot clutch on an old-fashioned automobile. On February 7, 1951, plaintiff was compelled to stop work because of severe pain in his right shoulder and his inability to use his right arm. He submitted to medical care but continued to suffer until May 28, 1951 when he underwent an exploratory operation. This disclosed calcific deposits at the tendons of the rotator cuff or calcareous tendonitis. There was medical testimony that the condition was the result of repeated traumata incident to the pushing and pulling of the lever. From the evidence the court was justified in concluding that there was a causal relation between the work performed by the plaintiff and the condition of his shoulder, which is more commonly referred to as bursitis.

The sole question presented is whether the injuries sustained under the circumstances outlined above are compensable as an occupational disease under the recent amendment to the Compensation Act.

R.S. 34:15-30 as amended, provides that compensation shall be made for personal injuries to an employee "by any compensable disease arising out of and in the course of his employment as hereinafter defined, * * *."

R. S. 34:15-31, as amended, provides:

"For the purposes of this article, the phrase 'compensable occupational disease' shall include all diseases arising out of and in the course of employment, which are due to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation,

process or employment, or which diseases are due to the exposure of any employee to a cause thereof arising out of and in the course of his employment."

As originally enacted in 1911 the above sections of the Workmen's Compensation Act made no provision for compensation for any occupational disease. Beginning in 1924 amendments have been adopted making some ten specific diseases compensable, most of them arising from chemical or metallic poisoning. None but the specific diseases mentioned were compensable, and the victims of other diseases were thus relegated to common law actions which were frequently defeated by reason of the common law defenses. To remedy this situation the Legislature liberalized the act by the recent amendment above quoted, and the issue here presented requires an interpretation of it and the determination of the question whether, in light of such interpretation, the plaintiff in the instant case has established that the bursitis of which he suffers was "due to causes and conditions which are or were characteristic of or peculiar to the particular trade, occupation, process or employment."

The theory of the plaintiff is that the condition from which he now suffers is the result of -- to use the language of the medical experts -- continuous minimal traumata caused by the constant pushing and pulling of the lever and constitutes an occupational disease under the provisions of the statute. The defendant, on the other hand, contends that while the bursitis of which the plaintiff complains may be due to an aggravation of the normal degeneration of the supra-spinatus tendon as the result of the work he was doing, his disease is not compensable since it was characteristic of and peculiar to the individual claimant and not to his particular trade, occupation, process or employment as required by the statute. In this respect it argues that since bursitis is not generally recognized as an occupational disease it should be concluded that it is peculiar only to the plaintiff.

That a disease arising out of and in the course of employment to constitute an ...


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