Opinion
No. 6856.
December 10, 1940.
APPEAL from the Industrial Accident Board.
Appellant sought compensation for herself and on behalf of her minor children for the death of her husband, alleged to have been caused by silicosis contracted by deceased while in the employ of respondent. The board denied compensation and she appeals. Affirmed.
J. Ward Arney and Clay V. Spear, for Appellant.
"Accident," under the act, is an unexpected, untoward happening, neither designed or intended, even though it proceeds from the operation of known and usual causes. Nothing more is required than that the harm sustained shall be unexpected, even though the causes be known. ( Sullivan Mining Co. v. Aschenbach, 33 Fed. (2d) 1; McNeil v. Panhandle Lbr. Co., 34 Idaho 733, 203 P. 1086; Aldrich v. Dole, 43 Idaho 30, 249 Pac. 87; In re Larson, 48 Idaho 136, 279 P. 1087.)
Silicosis is progressive, sharp silica cutting the lung tissue, but, mainly, the chemical reaction forming an acid condition which continues to eat into and scarify the lungs; the chemical, and not necessarily the abrasive, changes being destructive. (Report National Silicosis Conference, Part 1; Bulletin 21, pp. 11 and 12, Department of Labor.)
Silicosis is progressive, even when removed from further exposure.
Chas. E. Horning, for Respondent.
A disease contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incidental to a particular employment, and which is neither more nor less than a disease which is the usual incident or result of the particular employment in which the workman is engaged is an occupational disease and is not within the contemplation of the Workmen's Compensation Law and is not compensable under the provisions of that law. (Sec. 43-1810, I. C. A.; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Sullivan Min. Co. v. Aschenbach, 33 Fed. (2d) 1; Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000.)
E.B. Foote, miner, was employed as such in the Hercules Mine in Shoshone County from about 1923 to 1925 and in the Hecla Mine from then to April 30, 1937, when because of advanced silicosis from which he was then suffering he was unable to continue work as a miner, he ceased such employment and until October, 1939, swamped and cut logs. From the latter date, when he was unable to perform such arduous labor, he went on W. P. A. until November, 1939, when he was completely disabled by silicosis and confined thereby to his bed until his death therefrom January 12, 1940.
The evidence clearly shows that when Mr. Foote ceased working for the Hecla he was suffering from silicosis grade 2 plus as diagnosed by Dr. Smith, one of the doctors employed by respondent, and was then advised to take hospitalization therefor at Edgecliff Sanitarium, which treatment Mr. Foote declined.
Application was made by his widow, Eliza Foote, for herself and as guardian of their minor children, for compensation which was denied by the board on this finding:
"That the said E.B. Foote died on January 12, 1940 as a result of silicosis acquired by him while he was in the employ of the said Hecla Mining Company, as aforesaid; that the silicosis, as a result of which the said E.B. Foote died, was an occupational disease and was not the result of any personal injury by accident, and was not the result of, and was not caused by, any negligence or lack of care by or upon the part of said Hecla Mining Company, but that the same was the result of conditions which were inherent in said employment."
Between the antipodes of silicosis as an occupational disease and its accidental contraction ( Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000; In re Nixon, 60 Idaho 64, 87 P.2d 1007) or climax ( Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605) is a zone wherein, depending on the particular circumstances of the case and accidental features, or the absence thereof, affliction from silicosis will or will not, under sections 43-1001 and 43-1810, I. C. A., justify compensation. See special concurrence in Hoffman v. Consumers Water Co., 61 Idaho 226, 231, 99 P.2d 919, 921.
The circumstances of this case are to be determined as the law stood prior to the adoption of the occupational disease statute, embracing silicosis, chapter 161, 1939 Session Laws,
The Brown and Nixon cases, supra, held silicosis to have therein been accidentally contracted because of the employer's criminal violation of the statutes requiring the use of wet drills, and the employees' forced use of dry drills; that is, the evidence failed to show that in spite of the use of the equipment required by law, silicosis would nevertheless have been so inherent in the industry that it could not have been by reasonable, i. e., statutory, means prevented.
The factual showing herein as to the furnishing and use of drills is at complete variance with the above supporting premise and there was no sudden "blowing up" due to lethal, latent or dormant tuberculosis, or otherwise, as in Beaver v. Morrison-Knudsen Co., supra.
The board was therefore justified in finding and concluding that under the circumstances herein death was caused by an occupational disease and not an accidental inception, progression or conclusion thereof. ( Sonson v. Arbogast, 60 Idaho 582, 94 P.2d 672; Hoffman v. Consumers Water Co., supra; Pace, Rainer Pace v. Robertson, 186 Okl. 406, 98 P.2d 46.)
This disposition of the case renders unnecessary a consideration of the statute of limitations as raised.
The order of the board is affirmed.
Ailshie, C.J., and Holden and Morgan, JJ., concur.
Budge, J., deeming himself disqualified did not sit at the hearing or participate in the opinion.