Triebsch v. Athletic Mining & Smelting Co.

Robinson, J. The appellant is the widow of Arnold G. Triebsch. Prior to his death, Triebsch had been awarded compensation for an injury received in the course of his employment, and for which he was being paid compensation at the time of his death. The issue is whether he died from the effects of the injury causing his disability or from some other cause. The Workmen’s Compensation Commission held that his death was not the result of the disability for which he had been awarded compensation and hence that the widow is not entitled to recover death benefits. The law is settled in this State that if the employee dies as a result of the disability for which he had been awarded compensation, the cause of such disability is res judicata. We said in Bell v. Batesville White Lime Company, 217 Ark. 379, 280 S. W. 2d 643: “We think the Commission erred in retrying the issue of accidental injury. When the Commission’s finding upon an employee’s claim is res judicata as to his widow and children is a question of first impression in Arkansas. Several states have held that the rule of res judicata does not apply, but in most of them the peculiar wording of the compensation act permits the commission to modify its awards at any time. Our own provision for modification is not so broad. See § 81-1326. We believe the better reasoned cases to be those holding that a decision rendered during the employee’s lifetime upon his assertion of compensable disability is binding when his dependents raise the same issue after his death.” This court has held previously that Triebsch’s disability was compensable. Triebsch v. Athletic Mining & Smelting Company, 218 Ark. 379, 237 S. W. 2d 26. Hence, there is only one issue in the case at bar and that is: Did Triebsch die from the same cause that brought about his disability? For nineteen years, Triebsch had worked in the boiler room of the Athletic Mining & Smelting Company’s plant at Fort Smith. On the night of January 28, 1949, he became disabled. With reference to his disability, this court made the specific finding: “In the course of his work on that night appellant (Triebsch) collapsed and suffered a physically disabling attack, or breakdown, so that he is now totally and permanently disabled.” The record in the first case was made a part of the record in the case at bar. There was evidence in the first case that Triebsch suffered with bronchial asthma, bronchiectasis, emphysema and chronic nephritis. Whether the nephritis was caused by the pulmonary trouble, which was in turn caused by his working conditions, was a sharply contested point. In the first case, the employer contended that Triebsch’s disability was due to a “combination of renal (pertaining to the kidney) and pulmonary factors, the primary cause being principally of renal origin”, and that “the renal disease was degenerative in character and in no way associated with the pulmonary condition”. Whether the kidney condition resulted from the lung condition was an issue in the first case. In that case, Dr. Cull, who was a witness on behalf of the employer, said: “In my opinion, Mr. Triebsch’s disability is definitely due to a combination of both pulmonary emphysema and nephritis. ... I do not regard the pulmonary emphysema in this case as either a causative or contributory factor in the chronic nephritis.” On the other hand Dr. Iloge, who testified on behalf of the employee, stated: “I further disagree with Dr. Gull in his statement that the pulmonary emphysema is not a causative or contributory factor in the chronic nephritis. I disagree with this statement because his (Triebsch’s) previous records show that he had had an infection associated with emphysema, and there is no other factor to which one can attribute the etiology of this nephritis. It is a known fact that infection in any part of the body can and usually is the etiologic factor causing chronic glomerulonephritis.” Appellees’ principal contention in the case at bar is that Triebsch did not have glomerulonephritis; that glomerulonephritis can be due to an infection but that the kind of nephritis that Triebsch had could not be caused by an infection. This is one of the same issues that was present in the first case. In the first case, it was shown that Triebsch was totally and permanently disabled due to lung and kidney trouble which was aggravated by his working conditions and was therefore compensable. According to the undisputed evidence in the case at bar, he died because of lung and kidney trouble, the very same lung and kidney trouble this court has previously held to be compensable. Therefore, the issue is res judicata and appellant is entitled to collect the death benefits provided by the Workmen’s Compensation Law. Reversed. Justices McF addin and George Rose Sm;ith dissent. Justice Holt not participating.