Kovaliski v. Collins Co.

Cuetis, J. The reasons of appeal in so far as they involve applications for changes in the finding relate to matters which are either immaterial to the decision of the case, or not supported by the evidence. They are therefore overruled. The substance of defendants’ claim is that the plaintiff now has the grinders’ consumption, which has incapacitated him, and that it is a form of tuberculosis, and that tuberculosis is a contagious or communicable disease; hence, that this disease as a basis of recovery is barred by the terms of the so-called occupational *9 disease amendments of the Workmen’s Compensation Act. These amendments read in part as follows. § 1 of Chapter 306 of the Public Acts of 1921: “If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in point of time and place,” and § 11 of Chapter 306 of the Public Acts of 1921: “The word ‘injury’ as the same is used in said chapter shall be construed to include any disease which is due to causes peculiar to the occupation and which is not of a contagious, communicable or mental nature.” Before the commissioner and the court, the plaintiff claimed the right to compensation for a compensable injury causing incapacity which he claims arose in the course of and out of his employment. The plaintiff’s claim is not limited by any pleading in which he has defined the injury by name or otherwise. The question is simply whether the facts found disclose a compensable injury under our Compensation Act. In view of the facts found, it is apparent that the plaintiff has received an injury in his employment, which “cannot be traced to a definite occurrence which can be located in point of time and place;” but under § 11 of Chapter 306 of the Public Acts of 1921, it is an injury under the Act. In this case, as we said in substance in Dupre v. Atlantic Refining Co., 98 Conn. 646, 652, 120 Atl. 288, the character of the plaintiff’s work (as a grinder) injured him by producing a condition of the lungs which offered weakened resistance to either staphylococcus infection or streptococcus infection, or infection from the tubercle bacilli. His injury, as in the Dupre case, was the condition of weakened resistance to infection, whether that condition has a distinctive name (as pneumoconiosis) or not, and when that condition of *10 weakened resistance yields to infection and makes the workman unfit to work, the injury has become a compensable injury. It would be far afield to say that his condition of weakened resistance to infection caused by his occupation, did not become an injury until infection occurred. The injury occurred when the condition of weakened resistance arose, whether in 1913 or later. When the injury (the weakened resistance to infection) arises in the course of and out of the employment, then every consequence which flows from it likewise arises out of the employment. “The chain of causation may not be broken. Every injurious consequence flowing from it is a part of this chain. . . . All physical consequences and disease result from an injury when there is a causal connection between them.” Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 311, 312, 97 Atl. 320. In Dupre v. Atlantic Refining Co., 98 Conn. 646, 652, 120 Atl. 288, in dealing with pneumonia arising from exhaustion, we said: “The decedent’s exhaustion, due to the arduous character of his work on February 19th, injured him by producing a condition of weakened resistance to infection of the respiratory tract; and the fact that this injury [weakened resistance] cannot be traced to a definite abnormal condition capable of being located in point of time and place is no longer a bar to a claim for compensation, when, as in this ease, it is found upon legal evidence that it arose out of and in the course of the decedent’s employment. That it [the weakened resistance to infection] arose in the course of the employment is hardly to be seriously questioned.” The ruling in the Dupre case coupled with that in the Larke case seem conclusive of this case. The contention of the defendants is that, although the injury (the weakened resistance to infection) is not *11 of a contagious or communicable character, yet since the consequence, grinders’ consumption, resulting from infection by the tubercle bacilli, in so far as it is consumption, is communicable, therefore a recovery is barred by § 11, which provides, in substance, that when a disease is the injury complained of, if it is contagious or communicable, no recovery can be had. But in this case, the injury which developed into grinders’ consumption was a weakened resistance to infection called pneumoconiosis. This was an injury not contagious or communicable, and hence § 11 does not bar a recovery, when it becomes a compensable injury, by infection causing incapacity. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 311, 312, 97 Atl. 320. The consequent effects of the weakened resistance to infection in this case, to wit, the infection producing grinders’ consumption, is not the injury compensated for, it is the weakened resistance to infection which is the injury compensated for; the consequences of that condition when infection occurs is deemed a part of the weakened resistance to infection. This weakened resistance to infection, before the infection by the tubercle bacilli took place, was not a contagious or communicable disease or condition. Section 11 could not be construed so as to make it so. There is no error. In this opinion the other judges concurred, except Kellogg, J., who concurred in the result, but died before the opinion was written.