United States Gypsum Co. v. McMichael

RILEY, J. On February 8, 1930, the State Industrial Commission awarded respondent, Dewey McMichael, the sum of $539.50, and directed future payments at a rate of $17.31 per week until otherwise ordered as against the petitioner,, United States Gypsum Company. The award was based upon a finding of an accidental personal injury, said to have been sustained on or about June 27, 1929, when the claimant was employed by the petitioner in the work of loading box cars with gypsum rock. The claimant had been employed by the petitioner intermittently for a period of 16 years. His claim as to the accident is that he inhaled an excessive amount of gypsum dust, which resulted in acute bronchitis preventing him from returning to labor. The physician’s report, showing the date of injury, June 28, 1929, contains a diagnosis as pneumoconiosis. The United States Gypsum Company denied liability on the ground that if claimant was injured, which it denied, said injury was due ,to an occupational condition and not an accidental injury. The claimant testified that the box car which he loaded on June 27, 1929, was the worst he had ever loaded as to being dusty, the dust arising from the gypsum rock therein loaded; that his lungs hurt him and he was sick all night with his chest, lungs, and bronchial tubes; that he has not been able to work since. That prior to June 27, 1929, he had complained about the dust from the gypsum affecting his lungs. Dr. F. R. Buchanan testified, as family physician, that the claimant had prior to 'June 27th complained of the condition of his lungs, and that he examined claimant in March., 1928, and then found him suffering with chronic bronchitis and diagnosed the condition as pneumoconiosis, an ailment tentatively thought to be due to the kind of work performed, and later, in June, 1929, the' ailment was definitely determined to be such occupational disease. The witness testified that about April 1, 1928, he wrote to the employer suggesting that claimant be transferred to some other department on account of his condition and the influence of dust thereon. The doctor testified that in his opinion the inhaling of *75 the gypsum dust was the sole cause of the inability of claimant to perform labor since June 28, 1929. Dr. Moore testified .that he examined claimant on October 14th, and on September 1, 1929, and on January 17, 1930, and diagnosed the case as chronic bronchitis. Dr. Moore’s testimony is wholly compatible with that of Dr. Buchanan. Dr. John E. Heatley testified that from examination of an X-ray film he found a fibrosis condition in claimant’s lungs as of August 7, 1929, and that it would take a period of more than six months for the condition to derelop, and that there was no doubt that the condition of chronic bronchitis existed prior to June 27, 1929. Dr. McNeil, from an immediate examination of claimant and from examination of X-ray pictures taken in August and December, 1930,, testified as to an extensive fibrosis condition which likely was caused by work in the gypsum mill extending over a 16-year period. Thus we have outlined what we consider the evidence bearing upon the disability of claimant. The petitioner contends that there was no evidence showing that the claimant sustained an accidental* personal injury within the meaning of subdivision 7, of section 7284, C. O. S. 1921, as amended by chapter 61, !á. L. 1923, and that where there is no competent evidence of an accidental personal injury, the liability of the employer becomes purely a question of law. With this contention we agree, for the Oklahoma Workmen’s Compensation Act does not apply to occupational diseases, and only to diseases where they are the result of accidental personal injuries. The evidence before us does not show an accident at all. The legal result is the question as to whether a disease incident to the occupation of a workman is compensable under our law. The compensation laws of the several states differ in this regard, but Oklahoma’s law, as amended by chapter 61, S. D. 1923, makes an accidental personal injury a condition precedent for compensation of a workman engaged in hazardous employment. Such a condition excludes injuries arising exclusively from occupational diseases. St. D. Mining & Smelting Co. v. State Indus. Comm., 113 Okla. 179, 241 Pac. 170; Thomas v. Ford Motor Co., 114 Okla. 3, 242 Pac. 765. In the former case, this court held: “Prom a review of the compensation acts of other jurisdictions, we find that some of them provide compensation when a workman receives an ‘injury’ in the course of his employment while others make the foundation of such claim an ‘accidental injury’ oí-an ‘injury by accident.’ The courts, in interpreting the various acts have made an important distinction in the use of the words quoted. Generally it is held where the word ‘accident’ is used, the workman suffering from occupational diseases is not entitled to compensation, and where the word ‘injury’ is used, and ‘accident’ omitted, the workman contracting- occupational diseases is entitled to compensation. Bradbury’s Workmen’s Compensation 317. Under our Act (section 7284, supra), ‘injury’ is defined to mean ‘accidental injury,’ and the basis of a claim for compensation must be a casualty occurring without expectation or foresight; occupational diseases, sustained in the course of employment, where from the nature of the work such diseases are likely to be contracted, are excluded as a basis of compensation, for an occupational disease is not an accidental disability. Peru Plow & Wheel Co. v. Indus. Comm., 311 Ill. 216, 142 N. E. 546; Moore v. Service Motor Truck Co., 80 Ind. App. 668, 142 N. E. 19; Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Van Vleet v. Public Service Co. of New York, 111 Neb. 51, 195 N. W. 467; Jellico Coal Co. v. Adkins, 197 Ky. 684, 247 S. W. 972; Meade Fiber Co. v. Starnes, 147 Tenn. 362, 247 S. W. 989.” In the Starnes Case from Tennessee, heretofore cited, that court propounded the question therein presented as follows: “The question, therefore, is whether the breathing of dust necessarily caused by the very work in which the employee is engaged constitutes an accidental injury.” And answered the query as follows: “We cannot conceive that the breathing of dust caused to arise necessarily from the very work being performed has in it any element of accident. The material being moved was in the form of dust. It was contained in sacks. The very nature of the material and its container, and the movement thereof, necessarily and not accidentally, caused the dust to float in the air and to be breathed by the workmen. There was no accident in the form of the material, its container or method of movement. The escape of dust in its movement did not result from any fortuitous circumstance; it was necessarily incident thereto. It seems to us that the same reasons which exclude occupational diseases must apply here, and exclude an injury which is produced by the necessities of the occasion, in the absence of any accident entering into the cause of or as producing the particular occasion.” We conclude as did the English court on *76 appeal in Boderick v. The London County Council (1908) 2 K. B. 807: “It must be made out and not merely that there is injury arising out of and in the course of employment, but injury by accident arising out of and in the course of employment.” In Lawrence Scotland v. Canadian Cartridge Co., vol. 59, S. Ct. Rep. of Canada 471, it was held: “The word ‘accident’ means some unexpected event happening without design and the time of which can be fixed.” While herein the claimant tries to fix the time when he was injured, the evidence discloses he wholly failed to do so, but by his own physician’s testimony fixed his ailment as beginning at a time prior to the date upon which he ceased labor. Likewise, Dr. Moore testified that the physical condition of the man was the result of the whole situation. He said, “As I have outlined it, yes, both that afternoon and the previous times he has worked in the mill.” Which evidence in its effect is that the man’s condition is the result of inhaling irritating dust by a slow, insidious condition, little by little, not assignable to any particular day, but clearly a condition brought about by his occupation, amounting to an occupational disease. See Miller v. American Steel Wire Co. (Conn.) 97 Atl. 345, as to the course of legislation bearing upon accidental injury as distinguished from occupational diseases, and note the case of Kovaliski v. Collins Co. (Conn.) 128 Atl. 288, subsequent to amendment of the act of that state to provide compensation for occupational diseases. See, also, Wenrich et al. v. Industrial Comm. (Wis.) 196 N. W. 824, in consideration of an act embracing occupational diseases. The New York act does not include occupational diseases. Richardson v. Greenberg, 170 N. Y. S. 651, wherein it was said in regard to a statute like ours: “Had it been the intention of the Legislature to include within the meaning of ‘injury’ or ‘personal injury’ all diseases of whatever nature, it would not have been necessary expressly to mention, in addition to ‘accidental injuries,’ such diseases or infection as may naturally and unavoidably result therefrom. This express mention of a disease which is the consequence’ of injury would seem to exclude all diseases which are not. The particular disease must ‘result from ‘accidental injury’ — that is to say, it must be preceded by such injury, and therefore cannot constitute the injury which it follows.” See, also, Renkel v. Ind. Comm. of Ohio (Ohio St.) 141 N. E 834; Clinchfield Carbo Coal Corp. v. Kiser (Va.) 124 S. E. 271; Hendrickson v. Continental Fibre Co. (Del.) 136 Atl. 375; Depre v. Pac. Coast Forge Co. (Wash.) 259 Pac. 720; Iwanicki v. St. Ind. Com. (Ore.) 205 Pac. 990; Chop v. Swift & Co. (Kan.) 233 Pac. 800. The case of Sanders v. Rock Island Coal Mining Co., 138 Okla. 45, 280 Pac. 290, cited in the dissenting opinion, did not concern a disease in any respect. Therein was considered an accidental injury caused by a wrecked car wherein claimant’s arm was broken. That case is neither authority nor argument to sustain an award based upon conditions foreseen and known to exist for a long period of time, by and through which diseases appear. We conclude that, under the law and the evidence, there is nothing in the record to justify a finding of an accidental personal injury. The cause is reversed and remanded, with directions to dismiss the claim presented. MASON, C. J., and HEFNER, CULLISON, SWINDALL, HUNT, and ANDREWS, JL, concur. LESTER, V. C. J., and CLARK, J., dissent.