Mercatante v. Michigan Steel Casting Co.

Bushnell, C. J. Plaintiff Michael A. Mercatante was employed by defendant Michigan Steel Casting-Company in September of 1916. He first worked as an air hammer chipper and later as a hand grinder. Following an operation for hernia in 1941, he did inspection work in the same room where he had worked as a chipper and grinder. He stopped work on December 12, 1943, when he was hospitalized for influenza, followed by pneumonia. Oh January 8, 1944, he was transferred to Herman Kiefer Hospital. It was stipulated that if Dr. Paul T. Chapmah, the director of tuberculosis hospitalization and field service for the Herman Kiefer Hospital was produced, he would testify that Mercatante was — “first seen in the Herman Kiefer Clinic for X-ray on December 9, 1937. He was next heard from in 1944, when St. Mary’s Hospital reported'that he was ill. He was then hospitalized at the general hospital on January 3, 1944. Later on, January 8, 1944, he was transferred to Herman Kiefer Hospital and has been in this hospital from that time to the present date. His present condition is quite poor as he has silico tuberculosis, the tuberculosis has been progressing and involving more of the lungs during his hospital stay and his prognosis at the present time is hopeless. He gives a long history of exposure to dust, working- in a foundry. When he was first seen in 1937 a diagnosis of third-degree silicosis with superimposed tuberculosis was made. It seems obvious from the history and from the clinical course from the time this man was first seen the silicosis preceded by many years of the development of tuberculosis.” *544 After a hearing before the deputy commissioner, plaintiff received an award of $21 per week for total disability from December 12, 1943, until further order, but not to exceed a total of $750. Upon review of defendants’ appeal from this award, the department of labor and industry entered an ordef granting Mercatante compensation of $21 per week for total disability from December 12, 1943, until further order, but not to exceed the aggregate sum of $4,000. The department stated in its opinion: ‘ ‘ There can be no doubt that the last injurious exposure to the hazard of free silica occurred after the effective date of the occupational disease amendment,.” namely, October 29, 1937. See schedule of diseases, Act No. 10, pt. 7, § 2, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937. Section 2 of part 7 as originally enacted in 1937 provided: “Disabilities arising from Caused by * * * “30. Silicosis Mining “31. Pneumoconiosis Quarrying, cutting, crushing, grinding or polishing of metal. ’ ’ The department said: “The term ‘pneumoconiosis’ is recognized as a generic term used to cover all dust diseases of the lungs. The word ‘silicosis’ is used to describe a specific dust disease due to the inhalation of free silica. The term ‘pneumoconiosis’ includes the term ‘silicosis.’ It must be presumed that the legislature, when it placed the schedule of diseases in part 7, must have intended that pneumoconiosis, even *545 though caused by the inhalation of free silica, if contracted by an-employee who was engaged in ‘quarrying, cutting, crushing* grinding or polishing of metal’ came within the scope of the schedule and further that if his disability was due to pneumoconiosis contracted in such an occupation, he would be entitled to benefits provided by the amendment as originally enacted. Likewise, it would seem that yhen the legislature used the term ‘pneumoconiosis’ which covers all dust diseases, it intended to provide benefits for disability from all dust diseases which wére caused by ‘quarrying, cutting, crushing, grinding or polishing of metal,’ regardless of what the specific disease might be.. In this case the specific disease, silicosis, was caused by ‘quarrying, cutting, crushing, grinding or polishing of metal. ’ It is well known that a silicotic lung provides a very fertile field for the activity of tubercular bacilli. Tuberculosis is quite frequently a complication of silicosis. “The dust disease which is the cause of plaintiff’s total disability is one which was listed in the schedule in section 2 of part 7 when that part was originally added to the compensation act so the maximum benefit payable must be computed from October 29, 1937, the effective date of part 7.” The department held that Mercatante was totally disabled by reason of “pneumoconiosis, more specifically; silicosis, which was caused by ‘quarrying, cutting, crushing, grinding or polishing of metal’ and is due to causes and conditions which are characteristic of and peculiar to the business of the Michigan Steel Casting Company and which arose out of and in the course of his employment by that employer. We find December 12, 1943, the last day of work in the employment in which he last was subjected to the conditions resulting in disability, to be the date of injury. We further find December 12, 1943 to be the date of disablement. The date of disablement oc *546 curred in the 74th calendar month after the effective date of Act No. 61, Pub. Acts 1937. Plaintiff is therefore entitled to compensation of $21 per week for total disability from December 12, 1943 until the further order of the commission but not to exceed the aggregate sum of $4,000.” Webster’s International Dictionary (2d Ed.) defines the word “pneumoconiosis” by its derivatiofi from three Greek words, ‘ £pneumon, ’ ’ meaning lung ; “konio,” meaning dust; and “osis,” meaning an abnormal or diseased condition. Hence a dictionary definition of this pathological condition would be an abnormal or diseased dust condition of the lung. Defendants argue that the record does not “ support the determination that the disability of plaintiff is due to the dust disease of silicosis as found by the deputy commissioner,” and that-the department is not “ justified in determining that the silicosis suffered by plaintiff was pneumoconiosis in the absence of any such determination in the record.” This argument might be answered by simply approving the reasoning of the department, just quoted, and by applying the pathological definition just given. Sutter v. Kalamazoo Stove & Furnace Co., 297 Mich. 226, decided April 8, 1941, is authority for limiting the payment of compensation to silicosis arising out of mining, and that tuberculosis is not compensable. It is, also, authority, however, for the proposition that pneumoconiosis is compensable under the amendment of 1937. (Act No. 10, pt. 7, Pub. Acts 1912 [1st Ex. Sess.], as added by Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1940 Cum. Supp. § 17.220 et seq.]), when it is caused by the ‘£ quarrying, cutting, crushing, grinding or polishing of metal. ’ ’ Following decision *547 in the Sutter Case the legislature in 1943 amended part 7 by striking therefrom the schedule of diseases and provided for recovery for ‘ ‘ a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment.” Section 1, part 7, workmen’s compensation law, as amended by Act No. 245, Pub. Acts 1943, effective July 30, 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1947 Cum. Supp. §17.220). It should be noted that the date of plaintiff’s disablement, viz., December 12, 1943, was almost sis months after the effective date of Act No. 245, Pub. Acts 1943, which deleted the schedule of diseases from part 7 of the workmen’s compensation act and substituted in place thereof the language just quoted. Since that date any differentiation between silicosis and pneumoconiosis becomes unimportant; The situation disclosed in the instant case is similar to that in Gerlesits v. Lakey Foundry & Machine Co., 319 Mich. 229, where a like argument by defendant was discussed. Decision in the Gerlesits Case is controlling here. See, also, Stewart v. Lakey Foundry & Machine Co., 311 Mich. 463, and Thomas v. Continental Motors Corp., 315 Mich. 27, both of which were decided after the effective date of the 1943 amendment, supra. The department properly applied these authorities to the facts of the instant case. The record supports the department’s determination that the disability suffered by plaintiff is due-to pneumoconiosis. The award entered upon such determination is affirmed, with costs to appellee.' Sharpe, Reid, Btttzel, and Carr, JJ., concurred. with Bushnell, C. J.