Giambattista v. Thomas A. Edison, Inc.

• Decision Date: 20 September 1954
• Docket Number: No. A--414,A--414
• Citation: 32 N.J.Super. 103,107 A.2d 801
• Parties: Michael GIAMBATTISTA, Petitioner-Appellant, v. THOMAS A. EDISON, Inc., Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 103

32 N.J.Super. 103

107 A.2d 801

Michael GIAMBATTISTA, Petitioner-Appellant, v. THOMAS A. EDISON, Inc., Respondent-Respondent.

No. A--414.

Superior Court of New Jersey Appellate Division.

Argued June 14, 1954.

Decided Sept. 20, 1954.

Morton Stavis, Newark, for appellant (Gross & Blumberg, Newark, attorneys; Mabel L. Richardson, Newark, on the brief).

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

Before Judges JAYNE, STANTON and HALL.

The opinion of the court was delivered by

HALL, J.S.C. (temporarily assigned).

The petitioner appeals from a judgment of the Essex County Court, based on an opinion reported in 29 N.J.Super. 395, 102 A.2d 689, which reversed an award made by the Division of Workmen's Compensation.

The case arises under the occupational disease sections of the compensation statute. R.S. 34:15--30 et seq., as amended by L.1949, c. 29, N.J.S.A., effective January 1, 1950. Involved is a factual issue concerning a dermatological condition of the nails of the petitioner's hands and the relation of the employment thereto, in the light of somewhat confusing medical testimony and the conclusions to be drawn therefrom, and a legal problem of the interpretation of the pertinent statutory provisions.

The petitioner, an employee of respondent for some 25 years, was assigned about eight years or so ago to the job of repairing and maintaining machinery. This required removing greased parts and dipping them by hand in benzine for cleaning purposes, resulting in the continual immersion of his fingers in the liquid. We consider it important to note that the petitioner had no difficulty with his hands or nails before he started to work in benzine. Some little time after he was assigned this job, he began to notice some of his fingernails were affected by cracking and discoloration and the surrounding tissues became swollen and somewhat painful. In 1948 he consulted the employer's medical department about the condition and was referred to a dermatologist who made an examination but did little or nothing for him by way of treatment. He also consulted his personal physician on one occasion, who prescribed a salve. The condition became progressively worse during the ensuing years, more nails became involved and the pain, tissue inflammation and swelling so much more severe that he could 'hardly sleep at night' and could not put much pressure on the fingertips. So much of the evidence is uncontradicted. The claim petition was filed in October 1952 alleging, in effect, that the condition was an occupational disease caused by handling the machinery parts in chemicals. Respondent's answer denied that the petitioner was suffering from an occupational condition or from any permanent disability as a result thereof.

At the trial before the deputy director in June 1953 the petitioner called one dermatologist and the respondent two. The former examined him in September 1952 and on the day of the hearing, but made no cultures. On the first occasion, he found little black central stripes or ridges on the nails of both thumbs, one finger of the left hand and two of the right, with cracking and thickening of the nailplates, and dry, swollen, painful surrounding tissue. On the second examination, two additional nails were similarly involved, with the original ones having become worse in extent and severity. He characterized the condition as an 'occupational stigmata' causally related to continuous immersion of the hands in a primary irritant such as benzine over a period of years. Benzine was described as a defatting agent which tends to dry and crack the nailplates and to dry the surrounding tissue, causing permanent changes in the nature of an hypertrophy of both the plates and the tissues and consequent inflammation and pain of the latter due to pressure. The effect, or degree thereof, or primary irritants upon a person he stated to be a matter of individual susceptibility or resistance. It was brought out on cross-examination that the physician was of the opinion that the petitioner did not have a fungus infection of the nails of non-occupational origin because of lack of certain typical characteristics and the absence of similar findings on the toes, but he was positive that, even if such a fungoid condition were present, constant immersion of the affected members in benzine would be bound to irritate and aggravate it.

The detailed condition of the petitioner's hands at the time of the hearing as testified to by his medical witness was not substantially disputed by the respondent's dermatologists. They actually differed only as to the original cause thereof. One expert for the respondent was the physician who conducted the examination in 1948. He said that at that time he made a culture from shavings of the thumbnails and diagnosed therefrom a fungus infection. He believed he had also found evidence of similar infection of two of the toenails. All of this testimony was entirely from recollection since he had no records upon which to base it definitely. His second examination was in April 1953, when he made another culture, with the same diagnosis. The toenails were not examined on this occasion. His opinion was clear that there has to be a simultaneous infection of both the finger and toenails when such a fungus condition is present. The nature and extent of discoloration depends, he stated, 'on the occupation and chemicals that he comes in contact with.' Inherent in his testimony is the opinion that constant submersion of of the hands in benzine could worsen the condition, for he said such would depend on individual sensitivity to the substance, in some cases aggravation resulting therefrom, and in others, not. He was not asked whether he thought there had been such in this case. His belief was that if the condition were due primarily to benzine, all of the nails would have become affected simultaneously, but admitted that would depend on whether all had been immersed in the course of the work, on which point there was no precise evidence.

The respondent's other dermatologist examined the petitioner only on the day of the trial and preceded the first witness in testimony. His conclusion was also that the condition was fungoid in origin, basing that view primarily on the information given him as to the findings from the cultures. He found no similar involvement of the toenails, but indicated that simultaneous infection of the nails of both extremities was not necessary to make the diagnosis definitive. The opinion was also expressed that if this condition were basically a contact dermatitis, all of the nails would be involved. He agreed that benzine is a primary irritant and defatting agent and significantly stated:

'I assume after a period of years, after working with benzine or any other similar irritant, this condition would continue to get worse and there would be involvement of all the nails and also the hand.'

He made no mention of the factor of individual susceptibility.

The deputy director concluded that the disability was due, to some extent, to the exposure to benzine and that the petitioner had a fungus condition of the nails in 1948, which was aggravated by the subsequent continuous immersion in the substance during his work. Partial permanent disability compensation was awarded to the extent of 5% Of total, which was less than the figure given by the petitioner's expert. The respondent had presented no evidence at the trial on the extent of disability, resting entirely on the defense of absence of occupational relation.

The County Court, in reversing the Division and dismissing the claim petition, agreed with the deputy director that the underlying condition was fungoid in nature and non-occupational in origin. He also found as a fact that there had been no aggravation of the condition by the occupational exposure on the basis that there was 'no suggestion of probability' in any of the testimony, but that such was confined to mere possibility. His findings further indicate a conclusion that the effects of the benzine immersion did not constitute a 'disease' in and of itself. He held that the occupational disease sections of the act require 'origin of the disease itself from some cause connected with the employment' and stated:

'The aggravation of a disease, occupational or non-occupational, by other than accidental means cannot be said to amount to an occupational disease under the language of the statute. It is at most an occupational aggravation of a pre-existing condition, and, as such establishes damage, but not compensability'.

The respondent urges, as one basis of sustaining the dismissal of the petition, that the case was presented by the petitioner, both on pleading and proof, on the theory of occupational origin of the condition and not on the theory of aggravation which the deputy director relied upon as the basis for the award. 'The niceties of technical pleading have no place in the judicial enforcement of rights created by the Compensation Act.' Prino v. Austin Co., 120 N.J.L. 19, 21, 197 A. 731, 732 (Sup.Ct.1938), reversed on other grounds, 121 N.J.L. 518, 3 A.2d 621 (E. & A.1939). It is no basis for objection that the principle on which an award was made was not pleaded, if it was thoroughly tried out in the case. Fontaine v. United Engineers and Constructors, Inc., 170 A. 856, 12 N.J.Misc. 220 (Sup.Ct.1934). Although a formal amendment of the pleadings might well have been applied for and allowed, as a matter of good practice, the basis of the award was plainly stated by the deputy director at the close of the testimony, while there was yet time for the respondent to make prompt objection, and, if surprised, to seek further opportunity to meet the issue. This it did not do. The matter of aggravation seems to us to have been fully litigated by the parties and no prejudice is demonstrated. The contention now urged by the...