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Moccia v. Eclipse Pioneer Division of Bendix Aviation

Decided: October 26, 1959.

MARIE MOCCIA, PETITIONER-APPELLANT,
v.
ECLIPSE PIONEER DIVISION OF BENDIX AVIATION, RESPONDENT-APPELLEE



Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Petitioner appeals from a disallowance by the County Court of that part of an award granted in the Division of Workmen's Compensation based on the deputy director's finding of 12 1/2% of total disability attributable to neurological causes. Resolution of the appeal involves a consideration of earlier proceedings in the Division.

In December 1951 petitioner contracted an occupational contact dermatitis while in respondent's employ, for which she was treated by several doctors. She has suffered sporadic outbreaks of the condition, extending to different parts of her body. She has not worked since December 19, 1955 because of her disability.

Petitioner's first compensation hearing was before Deputy Director Winfield who, in February 1953, determined that she had sustained 3 1/2% of partial total permanent disability. His findings contain no reference to any neurological condition but expressly state that the award was for occupational contact dermatitis. There was no appeal.

The case was reopened by the filing of a petition for increased disability which came on for hearing before Deputy Director Kerner in June 1955. He awarded petitioner an increased permanent disability of 2 1/2% of total. His determination makes no reference to neurological disability; the increased award was specifically stated as being for occupational dermatitis. No appeal was taken.

In May 1956 Deputy Director Kaltz took the testimony of petitioner and two dermatological experts in connection with a second petition for increased disability. He made an award of 10% of total for increased permanent disability. In his specific findings forming part of the determination, award and rule for judgment he defined the accident as

occupational dermatitis and stated that the permanent disability resulted from contact dermatitis. Again there was no appeal. We shall shortly refer to the Kaltz proceedings in greater detail.

In October 1956, about five months after the Kaltz award, petitioner's condition became worse, requiring extensive treatment. She filed a new petition in February 1957. The matter came on for hearing in September 1957 before Deputy Director Ferster. On the first day of the hearing, as a result of the testimony and the deputy's personal observation of petitioner, the hearing was adjourned at his suggestion and both parties were persuaded to permit Mrs. Moccia to be treated by a New York City specialist. He treated her for almost 23 weeks, during which time the insurance carrier made temporary disability payments. The hearing was resumed in June 1958, resulting in a finding by Deputy Director Ferster of 50% total permanent disability. He said, "I further find this to be a dissemination of dermatological condition of her body, of which 16% has already been paid, and I therefore find the increase in her incapacity to be 34% of total, with 12 1/2% of this disability neurological and 21 1/2% dermatological."

The employer thereupon appealed to the County Court with respect to both the dermatological and neurological allowances. The County Court was of the opinion that the dermatological award was fully supported by the evidence, and affirmed it. However, the 12 1/2% neurological award was disallowed for the reasons hereinafter stated.

There is no dispute that there was no neurological factor involved in the first two hearings before Deputy Directors Winfield and Kerner, respectively. The real question involved in this appeal is the basis upon which Deputy Director Kaltz made his award. Respondent employer insists that in finding a 10% increased disability he was determining disability on a neurological and not a dermatological basis, and since petitioner had not, at the hearing before Deputy Director Ferster, established a comparative basis upon which

to conclude that there had been an increase in disability, the award of 12 1/2% for neurological disability was without foundation. Hopler v. Hill ...


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