In re Panagotopulos

• Decision Date: 22 September 1931
• Citation: 177 N.E. 800,276 Mass. 600
• Parties: PANAGOTOPULOS' CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 600

177 N.E. 800

PANAGOTOPULOS' CASE.

Supreme Judicial Court of Massachusetts.

Sept. 22, 1931.

Appeal from Superior Court, Suffolk County; W. H. Whiting, Judge.

Proceeding under the Workmen's Compensation Act by Vasilios Panagotopulos, claimant, opposed by the United Novelth Shoe Company, employer, and the Maryland Casualty Company and another, insurers. The Industrial Accident Board granted an award against the insurer named, in accordance with which a decree was entered by the superior court, and the insurer named appeals.

Reversed and rendered.

P. H. Ready, of Lowell, for claimant.

G. F. Garrity, of Boston (H. B. White, of Boston, of counsel), for insurer Maryland Casualty Co.

FIELD, J.

This is a workmen's compensation case, G. L. c. 152. The employee for some time was employed as a ‘treer’ by the United Novelty Shoe Company-Maryland Casualty Company, insurer-but left such employment about July 29, 1929. He was out of work two weeks, then worked for the Merrimack Shoe Company two weeks, was again out of work until January 20, 1930, then worked for the Model Shoe Company two weeks, and afterward for the Jackson Shoe Company until the latter part of February 1930. He claims compensation for ‘incapacity for work’ after February 20, 1930, resulting, as he contends, from a ‘personal injury arising out of and in the course of his employment’ by the United Novelty Shoe Company, G. L. c. 152, §§ 26, 34, 35.

After hearings of February 17, and March 3, 1930, a single member of the Industrial Accident Board found ‘that this employee received a personal injury which arose out of and in the course of his employment with the United Novelty Shoe Company, due to the irritation and breaking of his skin in the performance of his work as a treer, and inflammation and poisoning caused by the employee's use of ammonia and liquid dye polish, * * * that the employee's injury was received on or about July 25, 1929, * * * that this condition became disabling on August 6, 1929, about one week after the employee had left his employment with the United Novelty Shoe Company,’ ‘that the condition which incapacitated the employee was not materially affected by his subsequent employment elsewhere, and that all of his incapacity for work subsequent to August 6, 1929, is due to the injury received while in the employment of the said Shoe Company,’ awarded compensation against the Maryland Casualty Company, for total incapacity for two weeks beginning August 6, 1929, partial incapacity thereafter until August 30, 1929, and total incapacity from August 30, 1929, to January 20, 1930, and reserved the employee's further rights. The reviewing board adopted the findings and decision of the single member. This decision was not presented to the Superior Court.

After a hearing on November 6, 1930, as to the employee's further rights, the reviewing board, reversing the decision of the single member found ‘that the condition which incapacitated the employee subsequent to January 20, 1930, was due to the injury of July 25, 1929, from which the employee had not recovered,’ that he had been totally incapacitated for work from February 20, 1930, to the date of this hearing, was ‘incapacitated for return to his former work,’ and was entitled to partial compensation from November 6, 1930, based upon the difference between his earning capacity in his former employment and ‘in the general labor market,’ and accordingly awarded compensation against the Maryland Casualty Company. The Superior Court entered a decree in accordance with this decision and the insurer appealed.

1. The award of compensation for total incapacity for work from February 20, 1930, until November 6, 1930, as against this insurer was not justified by the evidence.

The evidence warranted a finding that from February 20, 1930, to November 6, 1930, the employee suffered from industrial dermatitis in his hands to such an extent that he was totally incapacitated for work during that period. It could have been found that industrial dermatitis, though termed a disease, is traceable to a ‘personal injury’ within the meaning of the workmen's compensation law (section 26), and is not a ‘simple disease resulting from [the] employment.’ See Sullivan's Case, 265 Mass. 497, 499, 164 N. E. 457, 62 A. L. R. 1458, and cases cited. Indeed the insurer makes no contention to the contrary. Poisoning induced by the necessary exposure of an employment falls within a recognized class of personal injuries. Maggelet's Case, 228 Mass. 57, 61, 116 N. E. 972, L. R. A. 1918F, 864;Pimental's Case, 235 Mass. 598, 602, 127 N. E. 424. See, also, Hurle's Case, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919;Bergeron's Case, 243 Mass. 366, 137 N. E. 739; and Carmossino's Case, 268 Mass. 35, 167 N. E. 350.

The finding of the board in its first decision which was not presented to the Superior Court, that the employee was poisoned by exposure to liquids used by him in his work as a ‘treer’ when employed by the United Novelth Shoe Company, and, consequently, that he received a personal injury arising out of that employment, is binding upon the insurer. Hurley's Case, 235 Mass. 387, 126 N. E. 775;Brode's Case, 251 Mass. 414, 417, 146 N. E. 731;McCarthy's Case, 253 Mass. 553, 149 N. E. 606;O'Neil's Case, 262 Mass. 266, 159 N. E. 731. However, the finding in this decision that ‘all of his incapacity for work subsequent to August 6, 1929, is due to the injury received while in the employment of the said Shoe Company,’ did not apply to his incapacity after January 20, 1930-as to which the employee's rights were reserved-and does not preclude us from examining into the cause of such later incapacity. See Hunnewell's Case, 220 Mass. 351, 107 N. E. 934;Weir's Case, 252 Mass. 236, 147 N. E. 561; and Hanson's Case, 264 Mass. 300, 162 N. E. 341.

The burden rested upon the employee of showing by a preponderance of evidence that his total incapacity between February 20, 1930, and November 6, 1930, resulted from his original injury and not from an independent intervening cause. Sponatski's Case, 220 Mass. 526, 528, 531-532, 108 N. E. 466, L. R. A. 1916A, 333;Upham's Case, 245 Mass. 31, 139 N. E. 433. This burden has not been sustained. Though the evidence warranted a finding that the employee's total incapacity after February 20, 1930, resulted from an outbreak or outbreaks of dermatitis after January 20, 1930, it did not warrant a finding that such outbreak or outbreaks resulted from the original injury.

The employee testified that after January 20, 1930, when employed by the Model Shoe Company and later by the Jackson Shoe Company he was exposed to poisonous liquids and that, in each instance, his hands broke out again. He stated that the ‘using of the liquid at his work in the Model Shoe Company started up the condition again,’ and that ‘it was the work he did there which caused his hands to break out again.’ In his testimony at the original hearing he stated that he ‘left this work on account of a recurrence of the condition of his hands.’ He testified that when he first went to work for the Model Shoe Company on January 20, 1930, ‘his hands were in fair condition although not entirely well. The soreness had not entirely gone.’ A physician who had treated the employee, called by him as a witness, testified that on January 20, 1930, the condition of the plaintiff's hands was ‘fairly clear,’ that on that date ‘his hands were in such a condition that if he kept away from irritants [they] * * * would have come along all right.’ He testified, however, that ‘if the man went back and did that shoe work it would start the condition again,’ and that he advised the employee, ‘when he went back to the Model Shoe Company on January 20th * * * not to get into this liquid again.’ A physician called by the insurer testified that if the employee's hands ‘were fairly cleared up after January 20, 1930, [the] witness would advise against his going back and using the irritant which was the cause of the condition. If he did use the same irritant [the] witness would expect to have the condition break out again. * * * No matter when this man goes back to work and comes in contact with such irritant his hands will break out again.’

The employee's description of the first outbreak of dermatitis after January 20, 1930, as a ‘recurrence of the condition of his hands' is not sufficient to warrant a finding of a causal relation between that outbreak and the original injury. This testimony is consistent with an outbreak similar to an earlier one, but caused by a new injury. Willis Case, 245 Mass. 244, 248, 249-250, 139 N. E. 505. So also to ‘start the condition again’ is consistent with a new injury.

The evidence warranted findings that the outbreak found by the first decision of the board to have resulted from the original injury was not fully cured on January 20, 1930, and that the employee on that date had such susceptibility to dermatitis that there was a high degree of probability, amounting almost, if not quite, to certainty, that further exposure to poisonous liquids would result in an outbreak of the disease. According to the employee's uncontradicted testimony, there were such further exposures and outbreaks.

Even if the employee is not bound by his statement that the first outbreak after January 20, 1930, was caused by his work for the Model Shoe Company (see Whiteacre v. Boston Elevated Railway, 241 Mass. 163, 165-166, 134 N. E. 640), the evidence warranted such a finding. So, also, there was evidence...