76 A.2d 512
No. 3935.Supreme Court of New Hampshire Hillsborough.
Decided November 8, 1950.
The finding that the plaintiff, although disabled from working in her usual place of employment due to an allergic condition, was able to work elsewhere and therefore ineligible to further workmen’s compensation payments (Laws 1947, c. 266, s. 21) was justified on the evidence. In such case, in the event the plaintiff suffers a recurrence of the same condition in her new employment whether such condition should be considered as a new injury or a recurrence of the old is for the determination of the Trial Court upon the filing by the plaintiff of a petition for modification under Laws 1947, c. 266, s. 38.
PETITION for compensation under Laws 1947, c. 266. The defendant moved to dismiss the petition and on denial of this motion excepted. The defendant also excepted to the findings, rulings and the award of the Court and to the denial of its motion to set them aside. The plaintiff excepted to the denial of her motion to set aside the findings, rulings and award.
It appeared that the plaintiff had been a spinner in woolen mills for thirty-six years, working at her trade in various plants in Manchester and at one time in Lawrence, Massachusetts. Commencing a few years before her present disability she had been bothered on occasion by a rash which had not prevented her working. On May 1, 1948, the rash became aggravated so that she was unable to work. She was sent home and was confined to her bed with severe itching, swelling, blistering, “puffed up” eyes, a temperature and generally acute discomfort. It was admitted that her trouble was due to dermatitis caused by some unknown factor at the defendant’s plant. After May 1, 1948, she returned to her work on three occasions but each time after periods ranging from a few hours to about three days she was so severely afflicted that she was forced to stop work. She was advised by the doctors treating her not to resume her position at the Arms Textile Company.
The Court awarded her compensation from May 1, 1948 to April 1, 1949. It ruled that she should endeavor to work at some other place and if upon so doing the dermatitis should recur a petition for modification of the decree under Laws 1947, c. 266, s. 38, would be in order. The defendant admits the plaintiff contracted dermatitis at its plant, that she is entitled to some compensation and raises no question as to medical bills which it has paid. It contests the amount of the award and the validity of the ruling that she may bring a petition under section 38, supra.
The plaintiff claims that she is totally disabled and entitled to further compensation.
Transferred by Wheeler, J. Other facts appear in the opinion.
Chretien Craig and John W. King (Mr. King orally), for the plaintiff.
Alvin A. Lucier and Normand R. Pelletier (Mr. Lucier orally), for the defendant.
The plaintiff claims she is totally incapacitated from working at any gainful occupation and that the Court’s finding, in effect, that she is able to work at some place other than the defendant’s plant is unwarranted. This contention cannot be upheld. Laws 1947, c. 266, s. 21, which governs this case provides in substance that to be eligible for compensation the workman must be disabled “for work at any gainful occupation . . .” and that “payments shall not
continue after the disability ends . . .” Dr. Norton, an expert called by the plaintiff in answer to the question “You don’t feel that this woman is disabled from work, do you?”, replied “No, only at Arms Textile.” Again, he was asked “Suppose she went to work now as a spinner in any of the many textile plants in Manchester, unless she is allergic to some substance she can work all right, without any trouble?”, he answered, “Oh, yes.” The Court had opportunity to observe the plaintiff on the stand and heard evidence as to her employment history and capacity for work. The finding that the plaintiff is able to work at some place other than the defendant’s mill was warranted by the evidence. Dowling v. Shattuck, 91 N.H. 234, 240-243. The words of our statute are plain and the ruling that the plaintiff is not entitled to compensation after the time when she is not disabled “for work at any gainful occupation” must be upheld. Manock v. Company, 86 N.H. 104, 107. See also, Clark v. Henry Wright Mfg. Co., 136 Conn. 514.
This disposes of the plaintiff’s exceptions and we turn now to the. defendant’s claim that there was no evidence to support the award of compensation for disability after September 21, 1948. Here again we believe the record sustains the Trial Court. While the evidence is somewhat conflicting there is testimony that the plaintiff tried several times after May 1, 1948, to return to her work and each time she broke out with a rash, severe itching, swelling and generally such great discomfort that she had to leave her work and go home for treatment, being confined to her bed on occasion. In October, 1948, she had itching “rather consistent and severe.” There was testimony that she “never completely cleared up.” An expert called by the plaintiff testified that on March 15, 1949, the day before the hearing on her petition, “she had areas of eruption of her skin and face, breasts, ears, abdomen . . . she is still having trouble.” He testified this was caused by her work at the defendant’s plant. On all the evidence we cannot say the Court’s finding that her disability continued until April 1, 1949, and his award based on this finding were unreasonable and the defendant’s exceptions thereto are overruled. Vallee v. Company, 89 N.H. 285.
Finally the defendant argues that the Court erred in ruling that if the plaintiff went to work at some other mill and “the dermatitis should again recur a petition for modification of this decree will be in order under the provisions of section 38” of chapter 266 of the Laws 1947. This section, so far as material here, is in substance that a party may petition the court within a limited time to review an award and increase, diminish or end it upon the ground of change in conditions.
or mistake as to the extent or nature of the disability. The defendant claims that upon the evidence here any fresh out-break of the plaintiff’s skin ailment would be a new injury and not a recurrence of the old one, and therefore, it would not be liable for it. This contention cannot be decided unless and until a petition for modification be brought by the plaintiff. The statute allows such petitions to be brought not later than one year from the date of the “last payment fixed by the award.” This right the plaintiff would have in any event and the ruling objected to cannot affect the rights of either party. It is not to be presumed that the Court intended to imply in its ruling any extension of the one year limitation, which of course it had no authority to do. If the plaintiff brings such a petition within the statutory period the Court will decide upon the evidence then presented whether there be a new injury for which the new employer might be liable or a recurrence of the present injury for which this defendant must answer. In any event no prejudice exists and the defendant takes nothing by its exception. The order is