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Silke v. Walter

Decided: December 6, 1960.

JOSEPH SILKE, PETITIONER-APPELLANT,
v.
HERBERT WALTER, D/B/A WALTER'S FURNITURE & REPAIR SHOP, RESPONDENT-RESPONDENT



Civil action. Determination of facts and rule for judgment.

Hopkins, J.c.c.

Hopkins

The petitioner appeals from a decision of the deputy director, dated October 15, 1959, denying his petition to reopen his case and seeking an award for increased permanent disability over and above that awarded to him by a decision of the Workmen's Compensation Division on September 13, 1955.

The petitioner first commenced working for the respondent in 1951 at the age of 61. Prior to that he had spent practically all of his working life in his own business of buying, repairing and selling antiques. His original work for the respondent was exclusively as a furniture repair man, but after a short period in this type of work during which his hands would be immersed in, or in contact with, paints, varnishes, shellac, paint and varnish removers and similar chemicals used in furniture repair, his hands developed a condition diagnosed as contact dermatitis. However, he continued in the employ of the respondent until December 3, 1953, when he left his employment for an ailment not related to his hand condition, and for which he was hospitalized until May 1954. Thereafter he filed a petition for temporary and permanent disability based on his hand condition. On September 13, 1955 an award was entered for 2-2/7 weeks of temporary disability and 5% partial permanent disability for residual contact dermatitis. From May 1954 until the award of September 1955 he remained in this area but sought no employment. In October of 1955, and following the award mentioned, to get away from the "freeze box" of the North, he moved permanently to Florida where, he then being aged 65, he has been living ever since on his

social security benefits and accumulated savings. He testified that he moved to Florida as a retired person but that he intended to open a woodworking shop of his own. He did not do this, nor did he attempt to secure employment in the buying or selling of antiques. As a matter of fact, he has never worked or sought employment there in any line of work.

In September of 1956, after about one year in Florida, he entered an adult public vocational school as a student, a retired person, and stated that it was his intention (never followed up) to file an application as a paid teacher. At the school he was engaged in making a wooden cupboard for his son under conditions, and in a room, where he again came in contact with woodworking chemicals. After about four weeks his hands again broke out with the dermatitis referred to, featured by festering, itchy sores. Prior to this, and following his severance of employment with the respondent, the petitioner's hands had cleared up and there had been no recurrence of his ailment.

On the advice of his attorney he consulted a dermatologist in Florida, not for any treatment, but merely for a report to be sent to his attorney, and on September 3, 1957 the present petition was filed alleging a worsening of the petitioner's condition and seeking an increase in the award for permanent disability.

After the second outbreak the petitioner treated himself with the same medication he had used in the North and his hands cleared up. He then returned to the school and spent an hour or so a day doing odd jobs. His hands did not break out again until about two weeks before he returned North in September 1958 for a hearing on his petition.

The petitioner in this case received an initial award in September 1955 of 5% partial permanent disability. The right of the court to make that award cannot be questioned. To justify an award of this nature, it is not necessary to show that the earnings of the petitioner have been impaired.

Where there is a work-connected loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life, compensation will be awarded even though there is no proof of present loss of earning power. De Zeng Standard Co. v. Pressey , 86 N.J.L. 469 (Sup. Ct. 1914), affirmed 88 N.J.L. 382 (E. & A. 1915); Burbage v. Lee , 87 N.J.L. 36 (Sup. Ct. 1915). The same reasoning applies to a compensable occupational disease. In Sutkowski v. Mutual Chemical Co. , 115 N.J.L. 53 (Sup. Ct. 1935), partial permanent disability was awarded to an employee where there was no disablement -- no interruption in the service given by the employee; and his earnings were in nowise affected. See also Calabria v. Liberty Mutual Ins. Co. , 4 N.J. 64 (1950); Stepnowski v. Specific Pharmaceuticals, Inc. , 18 N.J. Super. 495 (App. Div. 1952); Heidel v. Wallace & Tiernan, Inc. , 37 N.J. Super. 522 (Cty. Ct. 1955), affirmed 21 N.J. 335 (1956).

Following the award in 1955 the petitioner sought no revision of the award nor did he, by appeal, question its correctness. The 1955 award was, therefore, final and binding upon the parties, subject only to the continued jurisdiction to modify or enlarge the award to accord with an after-occurring increase or diminution of the disability which flows from the established compensable injury. Tucker v. Frank J. Beltramo, Inc. , 117 N.J.L. 72 (Sup. Ct. 1936), affirmed 118 N.J.L. 301 (E. & A. 1937); Cirillo v. United Engineers & Constructors, Inc. , 121 N.J.L. 511 (E. & A. 1939). The present petition, filed under N.J.S.A. 34:15-27, alleges that the petitioner's incapacity or disability has substantially increased. It is clear, however, that a finding of such increase must be grounded upon the comparative condition and ability of the workman and, to prevail, must be supported by proofs which permit ...


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