Ballinger v. Wagaraw Bldg. Supply Co.

• Decision Date: 27 June 1938
• Citation: 200 A. 744
• Parties: BALLINGER v. WAGARAW BLDG. SUPPLY CO.
• Court: New Jersey Court of Common Pleas

200 A. 744

BALLINGER

v. WAGARAW BLDG. SUPPLY CO.

Court of Common Pleas of New Jersey, Bergen County.

June 27, 1938.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by John M. Ballinger, claimant, opposed by the Wagaraw Building Supply Company, employer. From the determination of the Workmen's Compensation Bureau denying compensation, petitioner appeals.

Affirmed.

Nathan Rabinowitz, of Paterson, for appellant. Kalisch & Kalisch, of Newark, for appellee.

DEL MAR, Judge.

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A petition was filed in this cause alleging that on or about July 1st, 1936, the appellant suffered an accident arising out of and in the course of his employment with the appellee; that while working on a machine making building blocks, composed of sand, ashes and cement, sand and stone entered a mole on his left foot, causing an irritation which produced a melanoma. The appellee denied that there was any accident. After a formal hearing the Workmen's Compensation Bureau found "That the condition is purely occupational and is not the result of an accident arising out of and in the course of employment," and dismissed the petition. From this determination of the Bureau the petitioner appealed to this court.

The appellant contends, first, that the only point at issue is whether or not the petitioner's condition was the result of occupational disease or an accident or accidents; i. e., if not an occupational disease, that the petitioner should recover on the theory of an accident; second, that the appellant's disease was, in fact, caused by an accident; third, that if the appellant's disease was not due to a single accident, it was due to a series of them, and is therefore compensable.

The respondent contends that the appellant's disease was caused by the continuing daily irritation of a mole on his left foot over a long period of time; that no definite time was fixed by the testimony when an accident occurred; that, in fact, the petitioner did not suffer as the result of an accident, and therefore cannot recover.

I find from the evidence that the appellant was employed by the respondent continuously from the month of April, 1935 until the month of August, 1936, at which time he was compelled to stop work by reason of his physical incapacity; that during such time his occupation required him to attend a machine used for making cement blocks; that sand and ashes used in making these blocks were fed to the machine by a chute from the floor above, and that in the operation of the machine a quantity of the mixture was continually thrown off, some of it being deposited in the shoes of the appellant, by reason whereof he was obliged to empty them as often as twice a day; that prior to the month of July, 1936 the appellant apparently enjoyed good health; that from birth he had on the outer aspect of the instep of his left foot, in the midmetatarsal region, about an inch above the little toe, a dark pigmented mole, about the size of a dime. This mole was of a non-malignant character, and never caused the appellant any trouble until the month of July, 1936, at which time, or during the following month, it turned into or was replaced by a melanoma, which was removed by operations during the following August and September.

It is for the incapacity caused by this disease that the appellant claims compensation, and which he attributes to an accident which he says occurred on July 15th, on which day he suffered with severe pain in the afternoon; and after finishing his day's work, when he went to take his customary shower, in order to remove the sand from his feet, he found that his sock was stuck to his foot at the site of the mole, and there was a tan stain on the mole which looked to him like blood. Sand and ashes were stuck around it, and there was a scratch on it, about the size of the head of a pin.

Thereafter the mole started to swell and get red. The swelling persisted for several weeks, when it started to ooze, as the result of which he consulted a doctor, who sent him to the Paterson General Hospital, at which place he was examined by another doctor. He remained in the hospital for three days, and an operation was performed on him for the purpose of removing the melanoma which had formed at the site of the mole. Not long afterward a second and more extended operation was performed, which operation was supplementary to the first, and resulted in the removal of considerable tissue.

There is the usual conflict of medical testimony as to the cause of the melanoma.

I find that the weight of the medical testimony is that the melanoma was caused by sand constantly irritating the mole over a considerable period of time. There is no evidence that any more sand came into contact with the mole on July 15th than on any other day previous or subsequent thereto. It is just as probable that the region of the mole had commenced to swell by reason of sand irritating the mole on previous days, and that the pain felt on July 15th was only a symptom of a pre-existing condition, as it is that the sand coming into contact with the mole on that day caused the condition complained of.

There is no satisfactory evidence as to when the mole turned into a melanoma. There is no evidence that the sand coming into contact with the mole on July 15th was the cause of the melanoma.

I think it is a reasonable inference that the breaking of the skin on July 15th was caused by a swelling of the foot pressing against the shoe, causing the sand in the shoe to break the skin, and that this swelling is evidence of the pre-existence of a melanoma; in other words, that the melanoma had at that time already developed to a point where it caused the foot to become swollen, and therefore that the condition observed by the appellant on July 15th was the first apparent symptom of a disease from which he was already suffering.

I find, therefore, that the appellant has failed to prove the happening of an accident on July 15th by a preponderance of the probabilities.

Counsel for both sides are in agreement that the petitioner's condition was either the result of an occupational disease or an accident. I do not find that this is so.

The Workmen's Compensation Act, R.S. 1937, 34:15-1 et seq., provides for compensation in two classes of cases: First, where there has been an accident; and, second, in certain types of occupational diseases specifically provided for in the Act. If the employee suffers from disease caused by an accident, he may recover compensation for the disability due to the disease. There is a class of cases, however, in which the employee suffers from disease contracted during the course of his employment, for which no compensation is provided in the Act. Such a case is Martin v. Manchester Corporation, Gordon's W.C.Rep., 1912, 289, where a porter employed in an infectious disease hospital contracted scarlet fever, and it was held his condition was not caused by an accident. See, also, Finley v. Guardians, 7...