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General Chemical Division, Allied Chemical & Dye Corp. v. Fasano

Superior Court of Delaware, New Castle County

January 26, 1953

GENERAL CHEMICAL DIVISION, ALLIED CHEMICAL & DYE CORP.
v.
FASANO.

Proceedings for workmen's compensation for emphysema from which employee suffered. The Industrial Accident Board awarded compensation to the employee on ground that the employee had an occupational disease arising out of and in course of his employment and the employer appealed. The Superior Court, Herrmann, J., held that testimony regarding possible aggravation of pre-existing condition by acid and gas fumes to which employee was exposed in course of employment did not support a finding that disease originated in employment.

Case remanded for rehearing.

[47 Del. 547] William H. Bennethum (of Morford, Bennethum & Marvel), of Wilmington, for employer-appellant.

Page 601

John J. DeLuca and Joseph A. Julian, Jr., both of Wilmington, for claimant-appellee.

HERRMANN, Judge.

The Industrial Accident Board awarded compensation to the appellee on the ground that he has an occupational disease arising out of and in the course of his employment.[1] In support of its award, the Board made the following findings of fact, inter alia :

‘That as a result of frequent exposure to acid and gas fumes, and possible toxic and irritant organic dusts, Joseph Fasano does suffer from Emphysema.

‘That the Emphysema arose out of and in the course of his employment with the General Chemical Division, of the Allied Chemical & Dye Corporation.’

[47 Del. 548] The employer appeals on the ground that there was no competent evidence before the Board to support the foregoing findings of fact.

The type of emphysema involved in this case is hyperventilation and overdistention of the air cells of the lungs and bronchial tubes. The disease is an uncommon one and a specialist is usually required for diagnosis and treatment. The possible causes of the disease are manifold, one being as ordinary as the deterioration of age. I am convinced that the disability here involved is of such nature that a causal connection between the disease and an occupation can be established only by expert opinion evidence. The burden of proving such causal connection, i. e., that the disease arose ‘ out of and in the course of employment’, rests upon the employee.

The employee in this case failed to introduce any competent medical testimony whatsoever. He offered in evidence letters from two physicians, who have treated him for several years, and written reports of physical examinations by two consultants to whom he was referred by his physician. He stated that he was financially unable to bring his physicians and the examining doctors from Pennsylvania to appear as witnesses before the Board sitting in Wilmington. The employer objected to the admission of the letters and reports but they were admitted in evidence over objection and are a part of the record before this court. The letters and reports were the only medical evidence offered by the employee in support of his claim.

The letters and reports did not, of course, constitute competent evidence. While the nature of the proceedings and the spirit of the Compensation Law justify some relaxation of the technical rules of evidence, nevertheless, it is fundamental that the right to confront witnesses, to cross-examine them, to refute them, and to have a record of their testimony must be accorded unless waived. Compare Lord v. Delaware Liquor Commission, 1 Terry 436, 13 A.2d 436, 438. The admission of incompetent evidence will not invalidate an award of compensation [47 Del. 549] if there is other competent evidence to support it, but an award of the Industrial Accident Board may not be based wholly upon incompetent evidence. See Children's Bureau of Delaware v. Nissen, 3 Terry 209, 29 A.2d 603; LeTourneau v. Consolidated Fisheries Co., 4 Terry 540, 51 A.2d 862; Philadelphia Dairy Products Co., Inc., v. Farran, 5 Terry 437, 61 A.2d 400; Collins & Ryan v. Hudson, Del.Super., 75 A.2d 261.

I find no competent evidence to support the Board's finding that the emphysema suffered by the employee arose out of and in the course of his employment. The absence of competent medical testimony in the case presented by the employee was not cured by any testimony of the doctor who testified on behalf of the employer. This witness stated unequivocally that it was his opinion that the employee's condition did not arise out of and in the course of his employment and was not an occupational

Page 602

disease. None of his testimony, when fairly considered, aids the employee's claim of a disease caused by employment. In support of its ultimate finding of fact, the Board points to certain testimony of the doctor who testified on behalf of the employer. Upon ...


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