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Belber Trunk & Bag Co. v. Menesy

Supreme Court of Delaware

April 30, 1953


Workmen's compensation proceeding, wherein the Superior Court affirmed an award of the Industrial Accident Board, and the employer appealed. The Supreme Court, Wolcott, J., held that an injury unrelated to any industrial accident and not an occupational disease but which is gradually aggravated by nature of employment is not compensable.

Reversed with directions.

[47 Del. 596] William H. Bennethum, of Morford, Bennethum & Marvel, of Wilmington, for appellant. appellant.

Arley B. Magee, Jr., of Dover, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.

WOLCOTT, Justice.

This is an appeal from a judgment of the Superior Court affirming an award of compensation by the Industrial Accident Board. The Superior Court affirmed on the ground that there was evidence in the record to sustain the Board's award and that, under such circumstances, it is powerless to disturb the findings by the Board. On appeal in industrial accident causes, this court is bound by the same limitation. Le Tourneau v. Consolidated Fisheries Co., 4 Terry 540, 51 A.2d 862; Philadelphia Dairy Products Co. v. Farran, 5 Terry 437, 61 A.2d 400.

Initially, it should be stated that the appellee claims solely upon the theory that she suffered an injury by accident. Her claim is not presented as one for compensation for an occupational disease contracted during employment. We express no opinion, therefore, on the question of whether the appellee is suffering from a compensable occupational disease. This opinion should be understood by the reader as having reference only to the right of compensation for injuries by accident.

The appellee was employed by the appellant some time in October, 1949. In September, 1950, she took a leave of absence due to an unrelated physical condition, returning to work on January 15, 1951. On January 26, 1951, she was forced to quit work because of continuous pain in her shoulder and arm.

On January 26, 1951, the appellee's job was washing, sponging and polishing suitcases. Her job required her to lift and handle fairly heavy leather suitcases. The suitcases were stacked near her work table sometimes seven high so that she often was [47 Del. 597] forced to stand on a stool to lift down the top one. The performance of the washing and polishing operation required her to use her elbow and shoulder a great deal and energetically. About 9:30 or 10:00 A.M. she first felt the pain in her shoulder for which she now claims compensation. Her testimony was to the effect that the pain came on gradually and got progressively worse during the day. It has prevented her from working since January 26, 1951 up to the institution of this cause, and she has suffered some permanent diminution of earning capacity.

A doctor, called by the appellee, testified before the Board that he had treated the appellee for the pain in her arm and shoulder. He diagnosed her condition as a bursitis or an inflammation of the tendon

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of the bicipital muscle, which is used in the flexing of the forearm. He also testified that he referred her case to an orthopedic surgeon in Wilmington who diagnosed the appellee's condition as ‘ a rather typical supra spinatus syndrome, apparently with no classification and relatively little loss of shoulder motion.’ Apparently, the diagnoses of the two doctors were substantially the same. The appellee's doctor testified that her employment was directly responsible for her condition, and that the question of whether or not there was an accident on January 26, 1951 was immaterial because the appellee's condition was something that grows on people past middle age[1], and which can be aggravated by straining and lifting of the arm. He also testified that there must have been a precipitating factor on January 26, 1951.

At the request of the appellant, the appellee was examined by a doctor of its choice, who also testified before the Board. This doctor reached substantially the same diagnosis of the appellee's condition, but stated as his opinion that while her employment undoubtedly aggravated her condition, it did not cause it on January 26, 1951, even though the first symptom of [47 Del. 598] pain occurred on that day. He stated that in his opinion the appellee's condition developed over a period of time preceding January 26, 1951, and that the condition the appellee was suffering from is prone to develop in people of middle age who have degenerative changes in the bones, muscles and tendons. He further stated that it is more likely to develop in such persons who use their arms excessively, and that, ordinarily, the usual cause of the condition is not a direct injury, although it could be caused by a direct injury such as a blow.

We think the opinions of the doctors are in agreement. From their testimony, it must be concluded that the appellee's condition had been growing over a period of time prior to January 26, 1951, and that, undoubtedly, her employment aggravated her condition. The appellant, in fact, ...

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