Giambattista v. Thomas A. Edison, Inc.

• Decision Date: 15 January 1954
• Docket Number: No. 96399,96399
• Citation: 102 A.2d 689,29 N.J.Super. 395
• Parties: GIAMBATTISTA v. THOMAS A. EDISON, Inc. . Law Division, New Jersey
• Court: New Jersey County Court

Page 395

29 N.J.Super. 395

102 A.2d 689

GIAMBATTISTA v. THOMAS A. EDISON, Inc.

No. 96399.

Essex County Court Law Division, New Jersey.

Jan. 15, 1954.

Mabel L. Richardson, Newark, for petitioner-appellee (Gross & Blumberg, Newark, attorneys).

John W. O'Brien, Newark, for respondent-appellant (O'Brien, Brett & O'Brien, Newark, attorneys).

FOLEY, J.C.C.

In this workmen's compensation case the petition sets up an occupational disease as the basis for the claim. The deputy director awarded compensation upon a finding that the petitioner suffered compensable disability as the result of an aggravation of a fungus disease affecting certain fingers.

The petitioner has been in respondent's employ since 1928. He testified that for the last eight years he has been assigned to the job of repairing and maintaining machinery and that the daily cleaning of greasy parts and grinding dies entails the constant daily immersion of his hands in benzine. He said that shortly after he had commenced this work he had some trouble with his fingernails and hands, and that this became much worse in 1948 when the nails of two fingers of the right hand and three of the left swelled, cracked and became painful. He then went to Dr. Joseph Higi, a dermatologist, for treatment at the plant infirmary, this being the first treatment he had sought, notwithstanding the fact that the condition had existed for approximately four years. During the same year his own physician, Dr. Wysocker, prescribed a salve for him. This doctor was not called as a witness. Petitioner testified further that since then the condition has worsened steadily and that another finger on each hand has become involved. However, he has not sought treatment although he has been in the plant dispensary on occasion, and he still is doing the same job daily.

Dr. Irving Shapiro, a dermatologist, testifying in petitioner's behalf, examined him on September 30, 1952, and found five fingernails to be striped, ridged, cracked, discolored and thickened. The nails were pressing upon surrounding tissues, causing redness and swelling. When he examined again on the morning of trial he found that two additional nails had become involved and that the condition of the five appeared to have been aggravated in point of the extent and severity of the irritating process.

He diagnosed the condition as 'an occupational stigmata' resulting from constant immersion in benzine, a primary irritant.

Dr. Higi, when called by the respondent, testified that upon the occasions of his examinations on December 13, 1948 and April 10, 1953, he had made a culture from scrapings taken from the under side of some of the affected nails and found that they contained a fungus growth. He diagnosed the condition as onychomycosis, commonly called ringworm, a fungoid disease. He pointed out that if the condition was one of contact dermatitis, all nails would have been effected simultaneously.

Dr. Bart James, a dermatologist, examined in behalf of the respondent on the day of trial and confirmed the conclusions of Dr. Higi that the petitioner was suffering from fungus infection rather than contact dermatitis, likewise stressing the fact that only some of the fingers were involved.

All of the doctors conceded the possibility of the aggravation of the fungus infection but none opined that such aggravation was probable, nor was there the slightest suggestion by any that the infection originated in the irritant.

The weight of the evidence supports the conclusion that the disease from which petitioner suffers is fungoid in nature and it is so held.

However, I am unable to agree that the petitioner has made out a compensable claim under the occupational disease section of the statute. My reasons therefor are twofold.

The more important reason is the legal impropriety of awarding compensation in any case in which the claim is based upon an 'occupational aggravation' of disease as distinguished from an occupational disease originating in the circumstances defined by statute as those which render the disease compensable.

By statutory definition 'compensable occupational disease' includes 'all diseases arising out of and in the course of employment, which are due to causes and conditions which are or were characteristic of or peculiar to a particular trade,...