John Bishop Construction Co. v. Orlicek

J; Seaborn Holt-,- J. This is ail action arising under the Workmen’s Compensation Law of this State, § 81-1301, et secq., Ark. Stats., 1947. A single Commissioner initially heard the case and denied the claim and his decision was reviewed and affirmed by the full Workmen’s Compensation Commission. The Commission found that the disability and death of the deceased were not the result of an accidental injury arising out of and in the course of his employment, either to cause or aggravation. From this ruling, appellees herein appealed to the Circuit Court. That court held that there was not sufficient-competent evidence in the record to support the Commission’s .Order and reversed the Order and directed the Commission to make an appropriate award in favor of claimants, appellees. This appeal followed. Appellants assign one issue that the finding of the Commission is supported by substantial evidence and the Circuit Court erred in reversing the Commission. Certain facts other than medical testimony are substantially undisputed. On August 13,1950, deceased was working for appellants in the construction of a rice dryer near Hazen, Arkansas. . On the day in question, deceased and three other employees were working in a section of the dryer known as the “Tower.” The Tower was a section of the dryer that was substantially higher than the rest of the building and contained several levels of rooms approximately 14 x 10 feet and 10 or 12 feet in height. There were numerous holes in the floors of these rooms for the elevator, machinery and equipment that were to be later installed. The walls of the rooms had openings for windows but these were not in place. The deceased and the other workers were on the top floor of the Tower when a fire broke out three floors below" in the Tower. This fire was apparently caused by the sparks from an acetylene torch falling to ignite a rubber hose, rubber tires, and an acetylene tank. A black thick smoke enveloped the workmen who were forced to abandon the top floor by means of a rope on the outside of the building. All of the workmen were covered with black soot, and were coughing and spitting a black saliva when they reached a place of safety. The deceased was the last to descend from the Tower, and it was estimated that he was exposed to the smoke from fiftéen to forty-five minutes. Prior to the fire, there was testimony that the deceased, who was 45 years of age, was in good health and physical condition. On August 16, 1950, the deceased went to a doctor since he had a fever and headache, and following the fire he had complained of his chest hurting and had difficulty in breathing. On August 30,1950, he was referred to Dr. Erner Jones of Little Rock, and an examination at that time revealed a slight redness and irritation of his throat and a slight decreased breath sound in his lower left base, and a slight elevation of temperature. Three to five days later, a blood count was noticed to be abnormal. The final diagnosis was that the deceased was suffering from acute leukemia. He was treated and dismissed from the hospital on October 1, 1950. Approximately two and a half weeks later he was readmitted to the hospital for treatment. At that time he was described by Dr. Jones to have lost considerable ground to leukemia. Following treatment and some improvement, the deceased was discharged from the hospital on October 18, 1950. On November 1, 1950, he was admitted to a hospital in Searcy, and he died on November 4, 1950. The death certificate cited the cause of death as lymphatic leukemia. A great number of medical witnesses were called to testify and many medical documents were introduced in this matter to determine primarily if the smoke inhalation was the cause or an aggravation of the leukemia. It was generally agreed that the etiology or cause of this disease is unknown. It suffices to say on this appeal that some of the medical opinion was in accord with the theory that there was a causal connection between the inhalation of hydro-carbons in the smoke and the leukemia. Other medical opinion was to the effect that there was no such connection between the two. Thus it appears that the medical testimony is in conflict. It is not the province of the Supreme Court nor of the Circuit Court to try cases de novo on appeal from the Workmen’s Compensation Commission. (Award granted in the case.) The Workmen’s Compensation Act limits powers of the court to set aside any award made by the Commission to the four instances enumerated in the Act. Solid Steel Scissors Company v. Kennedy, 205 Ark. 958, 171 S. W. 2d 929. On appeal from a judgment of the Circuit Court in a Workmen’s Compensation case, it is the duty of the appellate court to affirm the award unless it can be said that the award is not supported by substantial evidence. Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the Circuit Court as well as to the Supreme Court from the judgment of the Circuit Court., Stroud v. Gurdon Lumber Company, 206 Ark. 490, 177 S. W. 2d 181. On appeal, the Supreme Court must view testimony in its strongest light in favor of the Commission’s findings. Hughes v. Tapley, Administratrix, 206 Ark. 739, 177 S. W. 2d 429; Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964. Where the Commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal. In the recent case of Mechanics Lumber Co. v. Roark, 216 Ark. 242, 224 S. W. 2d 806, in which there was conflicting medical testimony as to the causal relation between an injury and an existing malady (the cause of which was unknown) we said: “Thus it is seen that the testimony of the medical witnesses is in direct conflict. One finds a causal connection between the original injury and the disease. Another admits the possibility but doubts if there was in fact any connection. The third does not recognize the possibility. As we have frequently said in situations of this kind, such conflicting testimony presents a question of fact to be determined by the Commission. ’ ’ Appellees also argue that they have made a prima facie case which would entitle recovery for compensation benefits, within the provisions of the Workmen’s Compensation Act of 1939, § 81-1324, Ark. Stats., 1947, which at that time provided: “Presumptions. — In any proceeding for the enforcement of a claim for compensation under this act (§§ 81-1301 — 81-1349), there shall be a prima facie presumption, (1) that the claim comes within the provisions of this act, (2) etc. (Acts 1939, No. 319, § 24, p. 777).” However, this section of the Workmen’s Compensation LaW was amended by Initiated Act No. 4 of 1948 so as to omit presumption (1) above and now to read as follows : “81-1324. Presumptions. — In any proceeding for the enforcement of a claim for compensation, the following prima facie presumptions shall exist: (1) that the Commission has jurisdiction; (2) that sufficient notice thereof was given, etc. (Init. Meas. 1948, No. 4, § 24, Acts 1949, p. 1420).” Thus there was no such presumption in the present case favoring appellees, when the alleged claim for benefits arose. Accordingly, the judgment is reversed and the cause remanded with directions to reinstate the Commission’s Order denying compensation. Justices McFaddin, Millwee and Robinson dissent.