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Walsh v. Kotler

Decided: December 10, 1956.

RICHARD WALSH, PETITIONER-APPELLANT,
v.
LEO KOTLER, T/A AVON SHEET METAL WORKS, RESPONDENT-APPELLEE



On appeal from the Division of Workmen's Compensation, Department of Labor and Industry.

Gaulkin, J.c.c.

Gaulkin

Petitioner was awarded 20% of total permanent disability by the Workmen's Compensation Division for an "occupational disease" -- a Dupuytrens Contracture. He appeals, alleging he should have been awarded total permanent disability. The respondent took no appeal, but now argues that petitioner failed to prove that he contracted any "occupational disease" for which respondent must compensate him under R.S. 34:15-31, and therefore even the 20% should be taken away. When this court questioned respondent's right to raise that question now, not having cross-appealed, petitioner conceded that respondent had that right. Without approving or disapproving that position, the case will be treated as if both sides had appealed in time. Cf. Kolonkiewicz v. W. Ames & Co. , 23 N.J. Super. 265 (Cty. Ct. 1952).

When petitioner Walsh became disabled, on June 23, 1954, he was 65 years old, had been a roofer 40 years, and had never worked at anything else. For nine to ten years before that date he had been employed by respondent. As a roofer Walsh not only nailed or otherwise applied roofing materials to roofs, but prepared them (as in heating tar), and lifted or hoisted them to roofs by means of ropes, usually with pulleys. The materials were frequently heavy. He had done "that kind of work * * * close to forty years."

The last two years of his employment, "not before," Walsh had "trouble" with his hands. He testified:

"Well, in 1952 * * * I went on the kettle, that was down below, melting asphalt and tar * * * Then, of course, I continually pulled up pails of hot stuff * * * We pulled it up, had to put the bucket on the hooks, then raise and pull it up. You pull up two pails, and you have two empty pails, and when you are letting them down, the rope slides through your hands * * * The same when you pull up anything heavy * * * They started to get sore from pulling this rope * * * They would get rough and red, your hands, they would get sore * * * in the last two or three months before I quit they would break open and would bleed. On the Flockhart job in Elizabeth, I went up on the roof and my left hand was bleeding very bad. At that time I think I was pulling insulation * * * We had to pull it from the ground to the roof."

Unable to continue, Walsh went home. This was on June 23, 1954. After a few days, he called upon his employer and told him he was going to stop work for a while "to rest the hands." He was then earning $120 per 35-hour week.

About a year earlier Walsh had noticed the third and fourth finger on each hand ("little finger and ring finger") drawing together. "They started to get a little tight, never stopped me from working * * * After June 23, 1954, they really started to get a little stiff."

The acute distress of the hands apparently subsided to such an extent that in September Walsh asked his employer if he could go back to work. However, at that time respondent had no work for him and said he would call him when he had. In December he did call Walsh, but by that time Walsh's fingers had stiffened so that respondent, when he saw Walsh's hands, refused to re-employ him.

It is agreed by both sides that petitioner has what is known as a "Dupuytren's Contracture," which causes a claw-like contraction of the fingers. The issues are: (a) is this a "compensable occupational disease" under R.S. 34:15-31, (b) if it is, was it contracted at a time and under circumstances which make respondent liable, and (c) what is the extent of the disability?

Respondent seems to argue first that Dupuytren's Contracture is not an "occupational disease" because it has

not been shown to be "due to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or employment." However, we are not concerned with a definition of "occupational disease" which will satisfy a lexicographer. R.S. 34:15-31 has given "occupational disease" a special definition, and all we need determine is whether petitioner's disability meets that definition. That statute 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 ." (Emphasis added.)

No better answer to this argument could be given than the analysis of the statute made by Judge Francis in his article, " Recent Judicial Treatment of the Workmen's Compensation Act ," 79 N.J.L.J. 337, 344 (Sept. 13, 1956). He said:

"The word 'disease' was defined in the broad generic sense in Giambattista v. Thomas A. Edison , 32 N.J. Super. 103 (App. Div. 1954), as any departure from the state of health presenting marked symptoms.

Under this liberal statute, no longer is it required that the disease be one which is peculiar to the particular employment, such as lead poisoning * * * and the like. Now, recovery may be had for any disease -- defined as any departure from the state of health producing marked symptoms -- which is due to the exposure of the employee to a cause thereof arising out of and in the course of the employment. * * * Stepnowski v. Specific Pharmaceuticals, Inc. , 18 N.J. Super. 495 (1952). * * *

Again, in Bondar v. Simmons Co. , 23 N.J. Super. 109 (App. Div. 1952), affirmed o.b. 12 N.J. 361 (1953) * * * the appeal was predicated largely upon the ground that the condition was peculiar to the employee's susceptibility and not to the occupation. However, the award was affirmed, the court saying that one reason for the amendment of the Act was to overcome the previous decisional law that continuous minimal traumata did not constitute an accident and to provide for benefits in such cases on an occupational disease basis.

Then, in Giambattista already referred to, an award was granted where the employee was required to dip his hands repeatedly in

benzene. This aggravated a previous fungoid condition. The aggravation of a prior condition by employment connected exposures was said to be compensable.

And more recently a Dupuytrens Contracture of the hands, a disease in which the structures of the palm of the hand become involved in a scar-like contracture which produces ultimately a claw-like condition, was recognized as a basis for allowance. Factually, the employee was a truck driver who for 14 to 15 years, had been driving 15 ton tank-trailer trucks sometimes 400 to 500 miles a day, and who handled in the course of his work certain loading hoses weighing 60 to 70 pounds. There was medical proof that such multiple and varied pressures on his hands probably induced the contracture.

The proof showed also that some people have a susceptibility for the disease or are predisposed to it. This was said not to stand in the way of compensation. Duncan v. T.I. McCormack Trucking Co. , unreported.

Under broadly worded occupational disease statutes such as our present one, the general rule seems to be that a man who brings to his work a special kind of proneness to a disability quite different from the ordinary run of men who do the work, suffers from a disease if the work added an ingredient of causation to precipitate a resulting disability * * *"

Respondent's next point is that the proof here does not support a finding that Walsh's disability is due to his "exposure to a cause thereof arising out of or in the course of his employment" with respondent. Respondent develops this point as follows:

(1) The greater weight of the testimony in this case shows that Dupuytrens Contracture is not caused, aggravated ...


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