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Bober v. Independent Plating Corp.

Decided: November 3, 1958.


For reversal -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Francis, J.


Petitioner Adam F. Bober was awarded compensation by the Division of Workmen's Compensation under the occupational disease statute, N.J.S.A. 34:15-31. The County Court affirmed but the Appellate Division reversed on the ground that the proof failed to provide the necessary factual support for the judgment.



The respondent Independent Plating Corporation is engaged in various types of metal plating work, including chrome plating. During the period with which we are concerned, one building of the plant contained a large room 50 feet wide in which, according to Bober, there were 40 or 50 large tanks. (The plant foreman thought the number was about 75.) This room, called the plating room, was divided into two sections by a partition which extended from the floor to within a few feet of the ceiling. Among the tanks on one side of the partition were three devoted to chrome plating. When the chrome tanks were in operation, electrically generated heat was applied to the acid solution therein during the plating process. This caused a brownish spray or mist to be given off; it was described by the employer's foreman as a chromic acid solution. Apparently it was somewhat caustic in nature because if it got into a cut on an employee's hand, it would burn. The spray and fumes were supposed to be drawn off by ducts and carried up through the roof. However, the evidence reveals without dispute that the equipment was not adequate to remove all of the emission with the result that it settled and dried

out to a brown dust or powder. Deposits of it were visible on the steam pipes, lights, tops of the ducts, windows and window sills, equipment and on the floor. Respondent's principal factual witness, the plant foreman, said: "there is quite a bit of brown around there. I wouldn't say all of it comes from the dust or spray. I say a lot of it comes from when they wash down the tanks. When they take the piece parts out acid falls on the floor and gets around on different parts of equipment." The "chrome acid dust," a fine powder, would be on the clothes of men who worked on or around the tanks; one such person referred to a very light film on his skin. Testimony was introduced that the partition referred to was installed because of complaints by workers that the fumes got into "other parts of the shop."

On the roof there were two fan-type blowers designed to draw off the fumes and vapors. Each of these had 30 blades which at intervals became so heavily caked with the chrome dust that the operation of the blowers caused the building to vibrate. This would necessitate scraping and brushing the blades to free them from the caked dust. The workman engaged in the task was exposed to flying powdery dust. Moreover, he was allowed to stop only one blower at a time, and, as the other one was located only about a foot and a half away, the fumes and dust would be blown directly in his face.

Bober entered this working milieu on June 15, 1951. Prior thereto he had been in good health. He had never been bothered with "sneezing or nose running," persistent congestion in his head, or anything like rose fever or hay fever. And no medical attention had ever been sought for any such conditions. But he did bring with him a latent predisposition to allergic bronchial asthma. Of course, such a constitutional weakness does not militate against his right to compensation benefits. It is common doctrine that an employer takes an employee as he is, subject to all the weaknesses and the infirmities he possesses, even though they render him more susceptible to injury or disease. Duncan v. T.I. McCormack Trucking Co., 43 N.J. Super. 352

(App. Div. 1956); Reynolds v. Public Service Coordinated Transport, 21 N.J. Super. 528, 537 (App. Div. 1952), certification denied 11 N.J. 214 (1953). He was engaged as a maintenance man, "doing all the maintenance work, pipe fitting, electrical work and repairing of tanks, setting up tanks" and cleaning the blowers. The foreman called him a "Mr. Fix-it," an "all around man." His duties took him around the chrome tanks and above them at times. They required him to scrape and clean the dust off the blower fans and when he did this, the chrome dust was blown in his face and settled on his clothing; some was inhaled and when he blew his nose the handkerchief took on a brown discoloration. This latter experience occurred during the ordinary course of his tasks in the tank area. There is a dispute in the testimony as to the percentage of his working hours spent in the vicinity of the acid dust. The conflict need not be resolved. The fact of exposure is plain and, if the medical testimony is credible, it was sufficient to bring about the injurious results.

Shortly after the inception of his work around the chrome plating area, Bober began to sneeze. On mentioning it to others (including the foreman of the chrome tanks), they would "just laugh" and say, "Oh, you'll get used to that." But he did not grow accustomed to it. The sneezing grew progressively worse, his nose began to run, and he started to cough and wheeze. "Not too long" after Bober started there, the foreman noticed that occasionally he would cough, and the cross-examination indicated that later on at times "he could hardly stop coughing." The conditions seemed to be present when he was active in the chrome tank area; at night and over weekends at home he felt better.

As the employment continued, the coughing spells increased in frequency and intensity and were accompanied by wheezing and occasional vomiting. On October 6, 1953 Dr. Archie K. Ged, his family physician, was consulted. This doctor is not a specialist in allergies and had no formal training in the field, although he testified that 30% of his practice consisted of allergy cases. Bober was found to be

suffering from a rather marked allergy type bronchial asthma and to be allergic to wool, chocolate, coffee, spices, feathers, ragweed, animal dander, kapok, and house dust. Doctor Ged treated him until December 7, 1953, after which he did not return. According to Bober, the distress had not been relieved, so he went to a Doctor Silver, who subsequently sent him to Dr. Aaron Weiner, a specialist in the treatment of allergies.

Doctor Weiner first saw the patient on April 14, 1954, and treated him until the December 1954 termination of Bober's employment with respondent and thereafter down to the time of the hearing of this cause. When he went to Doctor Weiner, Bober testified, he was not able to sleep at night without medication, he had shortness of breath, wheezing and difficulty in breathing. In the morning he would feel better, but in the afternoon at work the coughing and wheezing would begin. At times during the spells, vomiting occurred. Finally, at the doctor's recommendation, he left his employment, telling the president of the company that every time he "worked in the shop [he] went home sick." Since leaving he has improved.

As of the date of the trial, petitioner was still suffering from shortness of breath; he tires easily and is unable to walk very far; occasionally at night on retiring, the wheezing recurs for half hour periods and it is necessary to sleep on two pillows. Apparently after the cessation of employment in December 1954, he did no work until the beginning of 1956, when he undertook light jobs for himself about two or three days a week.

Doctor Weiner found substantially the same allergies as Doctor Ged. His diagnosis, after (as he described it) intensive delving into history, was allergic rhinitis (inflammation of the mucous membrane of the nostrils) and bronchial asthma. And he expressed the opinion that the chromic acid dust to which Bober was exposed was the factor responsible for the allergic bronchial asthma. The causation mechanics were explained in this way: The patient had a latent allergic state. Although the dust was not an allergen,

or at least not one to which Bober was allergic, it was an irritant which sensitized the dormant condition and ...

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