Britto v. Fram Corp.

• Decision Date: 21 December 1961
• Docket Number: No. 2933,2933
• Citation: 93 R.I. 426,176 A.2d 81
• Parties: Joseph BRITTO v. FRAM CORPORATION. Eq.
• Court: Rhode Island Supreme Court

Page 81

176 A.2d 81

93 R.I. 426

Joseph BRITTO v. FRAM CORPORATION.

Eq. No. 2933.

Supreme Court of Rhode Island.

Dec. 21, 1961.

Abedon, Michaelson & Stanzler, Milton Stanzler, Richard A. Skolnik, Providence, for petitioner.

Worrell & Hodge, Eldridge H. Henning, Jr., Providence, for respondent.

POWERS, Justice.

This is an original petition for workmen's compensation resulting from an occupational disease, toxic peripheral neuritis, arising out of and in the course of the petitioner's employment, connected therewith and referable thereto. The cause is before us on the petitioner's appeal from a final decree of the full commission reversing the decree of a single commissioner awarding compensation as claimed.

The petitioner entered the employ of the respondent in February 1946, assisting in the kit department or stock room. Sometime in 1947 he was transferred to the paint department where he appears to have worked without interruption until 1952 or 1953. His work therein brought him in contact with carbon tetrachloride and several other chemicals. It is uncontradicted that the fumes from these chemicals occasionally cause nausea, which prompted him to ask for and obtain a transfer from the paint department. Later he returned for a short period but at the time he brought the instant petition he had been working for two years or more as a rotary pleater operator.

The record further discloses that as early as 1950 petitioner experienced difficulty with the fingers of his left hand, noticing a weakness in its grip. The impediment apparently worsened in time, becoming markedly serious in 1958. He consulted Dr. Joseph DeLuca who referred him to Dr. Barry B. Mongillo. The latter testified that he first saw petitioner on May 14, 1958 and had him admitted to the Rhode Island Hospital on May 20 for the purpose of having a cervical myelogram and to eliminate any question of a ruptered disc as well as for observation generally.

The hospital records disclose that the myelogram was performed by Dr. Julius Stoll and that the result was negative. Doctor Stoll's report dated May 31, 1958 stated, 'Certainly has plexus lesion cause not readily apparent,' and on that day petitioner was released from the hospital.

Doctor Mongillo admitted that he was uncertain what was wrong with petitioner on his admission to the hospital and had previously testified that petitioner thought he was troubled with arthritis.

It appears that following his discharge from the hospital petitioner returned to work on June 13, 1958. The respondent's records indicate that he was unemployed for two months in early 1959 because of 'bursitis' in his right shoulder, but otherwise worked without interruption until March 14, 1960, when he ceased working because of the condition of his left arm, wrist and hand.

The petitioner testified that he then consulted Dr. F. Lenz who treated him until May 23, 1960, on which day petitioner attempted to return to work. He was considered unable to work by respondent's physician, Dr. Foster. The petitioner then consulted Dr. Stanley D. Simon on May 25, 1960, having been referred to the latter by Dr. Lenz. The instant petition was brought on May 27, 1960 and hearings were held thereon commencing June 15, 1960 and concluding in November of the same year.

Doctor Simon, an orthopedic surgeon, testified that he had examined petitioner who was suffering from a swollen left wrist with pain and weakness in the hand and inability to adduct the left fifth finger, together with a fibrillary twitching of the muscles of the left thumb. It was the doctor's opinion that petitioner's condition presented two separate and distinct entities. The first such he diagnosed as an 'ulnar nerve palsy' which had been progressive and was directly related to the handling of chemicals incident to the nature of petitioner's work. The second he ascribed to a traumatic arthritis of the left wrist due to cystic degeneration of the carponavicular and a secondary traumatic arthritis of the radiocarpal joints.

Doctor Simon described the ulnar nerve as a sensory and a motor nerve. He testified, 'It supplies the motor power to the distal end or the small muscles which have to do with fine movements. It sends all the motor supply to the small muscles that has to do with the fifth finger motions. It also controls the fine motions of the thumb.' It was his opinion that petitioner was suffering from a lesion of the ulnar nerve, chemically inspired; that he was partially incapacitated; and that his incapacity resulted from exposure to carbon tetrachloride

Doctor Wilfred Pickles, a neurosurgeon, testified that at respondent's request he had examined petitioner on June 24, 1960 and several times thereafter. He stated that he had referred petitioner to Dr. Horwitz for X rays and to Dr. Dwinelle for an electromyogram. Their findings were incorporated in Dr. Pickles' report, which became respondent's exhibit. Doctor Pickles testified that petitioner clinically appeared to be suffering from neuritis, but that such diagnosis was ruled out by the electromyographic studies 'as there is no evidence of lower motor neurone involvement. There isn't any involvement of the peripheral nerve. We are thus forced to the conclusion that the patient has some form of myositis. That is an inflammation or degeneration of muscle.'

It was his personal diagnosis that petitioner was most likely suffering from 'chronic polymyositis' which he described as 'a collagen disease of unknown etiology.' He recommended that a muscle biopsy be performed to confirm or disprove his diagnosis. Questioned by the commissioner Dr. Pickles agreed that apart from any question of compensation the biopsy should be performed in the interest of petitioner's health. Asked by the commissioner, 'If it isn't polymyositis, then we've got to look further if the biopsy should be negative?' Dr. Pickles replied, 'I would think so.' Amplifying his answer the doctor added, 'I don't,--I don't know what we'll do, I mean, unless make further studies on the nerves and be sure that is accurate, that there is no damage to the nerves. I think it will be worthwhile then, as I said, if you could establish peripheral nerve disfunction, you'd have a very nice case for carbon tetrachloride here. So I think the thing to do would be to get the biopsy and if that is negative, then make further tests on the nerves and make sure we are not interpretating that wrong.'

The petitioner was asked if he would consent to having a muscle biopsy performed and on his agreeing to submit the hearing was recessed for that purpose.

When the hearing was reopened Dr. Pickles testified to the results of the biopsy. He stated that it showed no evidence of the collagen disease which he had suspected might be present and he then arranged with Dr. Dwinelle at Rhode Island Hospital for a Galvanic test, by way of exploring for a possible nerve injury. The latter test proved positive and after explaining why the electromyogram had proved negative Dr. Pickles concluded, 'Well, on the basis of the information now available, it agrees with the clinical impression that he has ulnar nerve deviation. Denervation of the muscles supplied by the ulnar nerve in the lower arm and in the absence of any other known cause and in the presence of a history of chronic exposure to carbon tetrachloride which is known to give peripheral neuritis, which this is, I think we have to assume it is due to the chronic exposure to carbon tetrachloride fumes.'

The single commissioner found that petitioner was totally...