Perales v. Worthington Pump & Mach. Corp..., C. P. No. A16052.

• Citation: 60 A.2d 804
• Decision Date: 30 June 1948
• Docket Number: C. P. No. A16052.
• Parties: PERALES v. WORTHINGTON PUMP & MACHINERY CORPORATION.
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

60 A.2d 804

PERALES

v.WORTHINGTON PUMP & MACHINERY CORPORATION.

C. P. No. A16052.

New Jersey Department of Labor-Workmen's Compensation Bureau.

June 30, 1948.

Proceeding under the silicosis and asbestosis supplement to the Workmen's Compensation Act by Manuel V. Perales, claimant, opposed by the Worthington Pump & Machinery Corporation, employer, to recover compensation for alleged silicosis.

Petition dismissed.

This is a proceeding brought by Manuel V. Perales, as petitioner, against Worthington Pump & Machinery Corporation, as respondent, seeking compensation under and by virtue of Rev.St. 34:15-35.1 to 34:15-35.9, N.J.S.A., known as the silicosis and asbestosis supplement to the Workmen's Compensation Act and being Ch. 88, Laws of 1944, approved April 10, 1944 and effective January 1, 1945.

A petition and answer were duly filed with the Secretary of the Workmen's Compensation Bureau at his office in Trenton, New Jersey. In regular course, the matter came on for trial before me, John J. Stahl, a deputy Commissioner of Compensation, at the Chambers of the Workmen's Compensation Bureau, 158 Ellison Street, Paterson, New Jersey.

Saul M. Mann, of Paterson, for petitioner.

James J. Carroll, of Newark, for respondent.

STAHL, Deputy Commissioner.

The present proceeding is grounded upon a claim of silicosis, a disease of the lungs, defined by the statute 34:15-35.2 as ‘due to breathing air containing silicon dioxide * * * dust, characterized anatomically by generalized fibrotic changes in the lungs, with a development of miliary nodulation’, and which disease petitioner avers was contracted by him during his employment with the respondent. Considerable testimony was offered in behalf of the respective parties, some of which was in sharp conflict as to fact as well as to credibility.

The burden of proof rests upon the petitioner to establish his right to an award of compensation from the respondent.

The petitioner testified that he was regularly employed by the respondent as an electric welder at its plant in Harrison, New Jersey, from June 1943 to January, 1946; that in the same room in which he worked were chippers, burners and sand blasters; that the sand blasters were but twenty feet from his welding booth, who, in the operation of their sand blasting machines, caused fine sand to permeate the room, so that the atmosphere appeared muddy; that from time to time during the period of his employment he was compelled to leave the room and go outside in the yard for fresh air; that during the months of September and October, 1945, he began to experience for the first time a faint feeling, chest pains, difficulty in breathing, a general tired feeling and short windedness; that on November 8, 1945, he consulted Dr. I. Glassman of New York City, who, after physical and X-ray examination, diagnosed his case as one of silicosis; and that on January 15, 1946, because of the gravity of his condition, he was forced to terminate his employment with the respondent. On cross examination it was elicited that petitioner had been a coal miner in Pennsylvania from 1932 to 1942, both as an employee of a large coal mining company and as a free lance mine operator.

Dr. Irving L. Appelbaum, a specialist in lung diseases, was the petitioner's sole medical expert. He testified that he examined and X-rayed the petitioner on February 26, 1946, discerning the following objective findings: pharynx slightly congested; teeth poor; heart essentially normal; blood pressure 120/78; regular sinus rhythm-rate 75; Lungs emphysematous breath sounds, with few scattered inconstant rales bilaterally; and X-rays disclosing fine linear fibrosis of both lungs with peri-bronchial nodulation and accentuated Hiler areas. In answer to a hypothetical question, the doctor expressed an opinion that the petitioner was suffering from silicosis with bilateral linear fibrosis; that the said disease was due to his last occupation with the respondent during the past three years; and that the petitioner was totally disabled from returning to his last occupation with respondent as a welder. On cross examination, Dr. Appelbaum conceded that X-rays alone are not diagnostic of...