Opinion
No. 27744.
February 21, 1950.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, HARRY F. RUSSELL, J.
Jesse L. Renderer, John H. Nolde, Ralph C. Kleinschmidt, St. Louis, for appellant.
Edward C. Friedewald and Alexander M. Goodman, St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis affirming a final award of the Industrial Commission of Missouri in favor of claimant, Boyd Killian, on his claim against his employer, Sterling Aluminum Products Company.
The claim alleged the date of accident as October 1, 1946, and that the nature of the injury was: "aggravation of pre-existing condition of polypi in claimant's nose which are infected and causing difficulty in breathing." The accident was alleged as "due to heat and dust inhaled at place of employment, the polypi in claimant's nose became infected, necessitating surgical operations of polypectomy, ultimate condition yet to be determined."
On the day of the trial, claimant, over the appellant's objections, was given permission to amend his claim to allege additional accidents on August 16, 1946, and November 8, 1946.
Employer and insurer, in their answer, denied each and every allegation contained in said claim for compensation.
The hearing before the referee resulted in the rendition of a temporary award on December 12, 1947, in favor of claimant, "For temporary total disability, the sum of $20 per week from November 8, 1946, to June 5, 1947, date employee returned to work; and from June 20, 1947, date employee again ceased work, to November 18, 1947, date of this hearing, and thereafter at the same rate per week until February 1, 1948, if such disability shall so long continue, on or about which date this case shall be reset for further hearing." Said award also directed the employer to furnish necessary medical and hospital treatment.
The referee found that claimant "sustained accidents on about August 16, 1946, and on or about October 1, 1946, and on or about November 8, 1946, which aggravated a pre-existing condition of his nose, resulting in temporary total disability, as set out in this award, and that the full nature and extent of said employee's injury cannot now be determined."
The Industrial Commission, on review, affirmed the award of the referee, with the modification that payment of compensation should continue until September 1, 1948, if such disability should so long continue. Commissioner Atkeson dissented on the ground that the employee had failed to show that he had sustained an accident within the meaning of the compensation act.
Thereafter, a further hearing was had before the same referee on September 1, 1948, and additional evidence presented. On this evidence the Industrial Commission (Atkeson dissenting) entered an award in favor of claimant for temporary total disability in the sum of $20 per week "from November 8, 1946, the date disability began, to June 5, 1947, date employee returned to work; and from June 20, 1947, date employee ceased to work, to September 1, 1948, date disability ceased."
In the findings of fact the commission found that claimant sustained accidents on August 16, 1946, October 1, 1946, and November 8, 1946. The accidents were described as: "Inhaled heat and dust at place of employment."
Commissioner Atkeson's reasons for his dissent are as follows: "1. Employee's own testimony shows that he was not subjected to any greater heat than other employees who were doing the same kind of work, under the same conditions, and therefore he did not sustain an accident or accidents within the meaning of the Missouri Workmen's Compensation Law. Mo.R.S.A. § 3689 et seq. 2. Employee's medical evidence failed to show within reasonable certainty that his condition was due to the alleged accident or accidents."
Boyd Killian was employed by Sterling Aluminum Products Company in December, 1944. His work consisted of molding aluminum automobile pistons. This work was carried on at a machine within six feet of a furnace, on each side of which was a pot for molten aluminum. The molten aluminum in these pots is heated to about 1350 degrees Fahrenheit. In performing his duties, claimant would secure molten aluminum from one of these pots, take it to the machine on which he worked, pour a mold, press a button which would swivel the poured mold to the rear of the machine and bring forward the empty mold opposite, which he would then fill. The second mold would then be moved to the rear, which would bring forward the one first poured. The latter would be a finished piston. It would be removed, and the performance of pouring would be repeated. Claimant would carry the finished pistons to a table. He produced about 672 finished pistons per day. The machine on which claimant worked was six feet in front of the furnace.
When asked if anything unusual happened on August 16, 1946, claimant replied: "Well, I got unusually hot. I never was so hot before, in my life * * * and I got weak, and I went ahead and finished the thing out after I rested a while * * * and I was light headed — my neck had no strength * * * then it came back. * * * I told the foreman, John Alexander, at that time." On cross-examination claimant testified that he rested about fifteen minutes and then worked the rest of the day, but did not work the next day or for several weeks thereafter.
It further appears from claimant's testimony that he got "hot" again on October 1, 1946. He stated he told his foreman, Jack Frost, but the latter said nothing about it, nor did he send claimant to the doctor. Claimant continued to work that day, but did not work the next day, nor for quite a while thereafter. Claimant further testified that he got "hot" again on November 8, 1946. He quit work on that occasion for about fifteen minutes, after which he felt better, and went back to work. His hand cramped on him at the time. He further testified: "* * * and I spit up foam, like some dog with the hydrophobia. * * * I got sick and spit up foam. I very near collapsed, but didn't get quite down. I finished pulling both pistons out of the machine. I didn't think I could make the last one, but I got it."
On June 5, 1947, claimant again tried to work, and did work until June 20, 1947. During this time he again suffered a recurrence of his trouble. He testified: "I went to the rest room a few minutes and went down to the office, and the foreman had some kind of medicine they gave me. They didn't offer to send me to a doctor or nothing. That was along about ten o'clock, and I went on home, and went back and worked about two weeks, and that is all."
It appears from a review of the medical testimony that claimant suffered from a respiratory infection allergic in origin and due to the inhalation of dust, which the doctors said could be aggravated by heat. However, none of the doctors gave it as their opinion that claimant's allergy was, in fact, aggravated by heat.
Dr. Hugo F. Bergman examined and treated claimant on August 19, 1946. He stated that claimant at the time complained of being weak, having fever, vomiting, and diarrhea of about three days' duration, coughing and spitting up phlegm, and stopped up nose. Claimant also told the doctor he had been working in front of a hot dusty furnace. The doctor further testified:
"Q. Taking that into consideration, did you find substantiation for the opinion that the condition he was suffering from could be the result of excessive heat? A. Yes, sir."
Dr. Bergman further testified that he treated claimant fifteen times between August 19, 1946, and May 31, 1947, and that during that time claimant's complaints were mostly the same as when he treated claimant on August 19, 1946, but the vomiting and diarrhea had cleared up, according to the doctor's testimony.
It further appears from the testimony of Dr. Bergman that claimant had been under his professional care previously; that between April 8, 1946, and August 19, 1946, he had treated claimant for spastic colon and nerves. The doctor stated that he did not recall that claimant complained of weakness during that time. He also stated that since claimant's spastic colon was chronic, instead of acute, there would be no fever accompanying it.
Dr. Bergman stated that any irritant, such as dust, would cause infection of the nose and throat, though all dusts were not irritative to all people. The doctor did not make any tests on claimant to determine if he was allergic to dust.
Dr. Bergman further testified he did not, prior to August 19, 1946, treat claimant for weakness, vomiting or looseness of the bowels, but that the condition which claimant had on August 19, 1946, was evidently an acute attack which he did not connect in any way with the spastic colon. He stated that the fact that claimant was vomiting phlegm would indicate a respiratory irritation which could cause the loose bowels. The doctor stated he continued thereafter to treat claimant for the spastic colon, nervousness, and respiratory irritation. He also stated that on the occasion of claimant's visit to him on August 19, 1946, he did not make any attempt to connect up the nausea and weakness with the spastic colon. Claimant admitted that in May, 1945, he had an obstruction removed surgically from one side of his nose, but stated that his nose did not cause him trouble thereafter until August, 1946.
Dr. R. J. Payne, a nose and throat specialist, testified that he saw the claimant professionally on November 29, 1946, at which time claimant complained of a postnasal discharge and nasal obstruction for the last two and one-half years. The doctor stated that at that time the sinuses were clear and equal, and that the nasal condition presented a typical picture of allergy in recurrent infections; that the mucous membrane was thickened; and that there was an overgrowth of tissue that looked like a tumor. The doctor stated that the latter are of two kinds — one produced by an infection or suppurating sinus, and the other is due to allergy. He stated that claimant had what they thought was evidence of a chronic sinus, but, because the sinuses showed clear, he did not have a sinusitis from pus. He stated that symptoms of sinusitis and allergy run close together.
Dr. Payne further testified that he got a history from claimant that about a year and a half prior to August 16, 1946, claimant had an obstruction removed in the upper right side of his nose. Dr. Payne testified:
"Q. Would that obstruction have any relation to the condition for which you treated him? A. I would not be surprised if it didn't, because we had to do something very similar to that later, a cautery, to relieve the swelling."
The doctor further testified that if you become overheated and cool off too quickly you can develop a respiratory infection; that all allergies are very susceptible to temperature — either hot or cold. Further testifying, Dr. Payne stated:
"Q. What I am trying to clear up is, what effect, if any, this exposure to heat on August sixteenth of Nineteen Hundred and Forty-six might have on this man's condition? A. Well, I think it could have an effect on allergy — either heat or cold. It is a vasomotor condition and instability of the contraction and dilation of the muscles of the blood vessels brought about some irritating substance.
* * * * * *
"A. * * * we are conscious of the fact that changes in temperature affect all these allergic people; if they come from the outside into a warm room — if they blow their nose — * * *
* * * * * *
"A. If he was exposed to the excessive heat, this flared up — you could have a reaction of those allergic symptoms.
* * * * * *
"A. Well, I think either cold or heat could give you a flare-up, an allergic attack — may not be permanent, but would flare it up. I think it could."
Dr. Payne further testified that he continued to treat claimant for that infection when he would have an acute attack of his allergic flare-up, swelling of the nose, and frequent colds. He stated that he had treated him probably twenty-five or thirty times.
On cross-examination, Dr. Payne testified:
"Q. Can you give us any idea, Doctor, what degree would be excessive heat, enough to irritate this allergy, to cause that infection? A. Well, there are so many factors there. How close did he get; how much he had; enough to give him a knockout.
"Q. In other words, doctor, to actually tell whether the heat, to which he was subjected, actually affected or caused that infection, you would almost have to know the degree of heat, the length of time he worked with it, the number of hours per day, how closely he was associated with it, and many other factors? A. Yes, it is hard to calibrate all of those factors."
Dr. Payne again testified at the hearing held September 7, 1948. He stated that he saw claimant ten or twelve times after November 18, 1947, and that claimant complained bitterly of an obstruction in the left side of his nose, which obstruction was removed March 12, 1948. The doctor stated that he thought the obstruction was a continuation of the condition for which he treated claimant in November, 1947. The doctor thought the result of the operation was successful, stating that the obstruction had been relieved, and that claimant now breathes more freely.
Dr. Payne further testified: "This man would come to the office some days quite jittery; he would have headaches; and the mucous in his nose would look like a sponge, and coming in contact with the allergy, he had one side so blocked it looked like it would never open up." It further appears from this doctor's testimony that tests revealed claimant to be allergic to dust.
Dr. L. E. Freimuth, a nose and a throat specialist, testified that he examined claimant a week prior to the date of the last hearing. He testified:
"A. He complained of — history started two years ago with some nasal obstruction, and increased until he was sent to a nose and throat specialist last March who operated on his nose. Since that time his breathing has been improved, and he says his nose doesn't bother him too much at this time. * * * his sinuses were drained, adequate nasal respiration, scar on both lower turbinals, and the mucous membrane was suggestive of a mild allergic condition. There was no evidence of pus and sinusitis, and no polypi. * * * The membrane was just pale instead of pink, and apparently he was getting adequate respiration.
* * * * * *
"Q. As a result of your examination of Killian, doctor, would you give an opinion as to whether there was any disability in his nose which would prevent him from working at that time? A. At the time I examined him, no."
About two months before the hearing claimant was treated by Dr. James Costen, a nose and throat specialist. Dr. Costen administered penicillin. Claimant testified that Dr. Costen told him not to work. Claimant further stated that while Dr. Payne was treating him the doctor told him to stay away from work and rest, but did not tell him to stay away from work during the whole time. Claimant testified at the first hearing that he was not able to work; that he was too weak to work. It appears from the evidence that between November 8, 1946, and September 7, 1948, claimant only worked two weeks. He testified that he made no effort to look for employment.
Appellant contends that the award of the Industrial Commission, as affirmed by the Circuit Court, is not supported by sufficient and competent evidence. Specifically, appellant urges that there was no evidence that respondent's disability was the result of an accident within the meaning of the Compensation Act. The Act, Section 3695(b), R.S.Mo. 1939, Mo.R.S.A. § 3695(b), defines an accident to mean: "* * * an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury."
The courts, at first adopted a construction of the Act which permitted recovery where the event, when viewed as a result, was unexpected and unforeseen. But our Supreme Court, in the case of Joyce v. Luse-Stevenson Co. et al., 346 Mo. 58, 139 S.W.2d 918, followed by State ex rel. Hussman-Ligonier Co. et al. v. Hughes et al., 348 Mo. 319, 153, S.W.2d 40, definitely rejected this view, and held that the terms of the Act demand that we look no longer to the result; viz., injury or death, in determining this question, but to the event which precedes and is responsible for said injury, or death. If the latter is unforeseen and unexpected, and contains the other elements mentioned in the definition, a case of accident within the statute arises.
Appellant relies heavily on Joyce et al. v. Luse-Stevenson Co., supra. In that case it appears that the employee worked in a sub-basement where there was considerable water covering a large portion of the floor, with the result that he habitually got his legs and feet wet while performing the duties of his employment. On and prior to October 1, 1936, employee was in his usual health, but during the afternoon of the following day he seemed not to be working as vigorously as usual, and did not talk as much as was his custom. He did not eat his evening meal, and that night complained of not feeling well. During the night he became acutely ill. The next few days his condition grew worse, and a doctor was called. The doctor diagnosed his ailment as lobar pneumonia. The employee died of this disease on the 11th of December. Experts called by claimant stated that it was possible for deceased to have contracted pneumonia as a result of working in the damp condition above described. Recovery was sought on the theory that deceased contracted pneumonia as a result of accident. The court held, however, that the evidence did not show an accident within the meaning of the Compensation Act. The Court said: "Many cases are to be found in which pneumonia was caused by a sudden traumatic injury to an employee clearly constituting an accident. * * * But where, as here, the disease resulted from exposure in the ordinary course of the employee's work, the weight of authority is to the effect that the disease is not compensable. (Citing cases.)" Joyce et al. v. Luse-Stevenson Co. et al., 346 Mo. 58, 64, 139 S.W.2d 918, 920.
In the case of State ex rel. Hussman-Ligonier v. Hughes et al., supra, the Supreme Court, in discussing its ruling in the Joyce case, said: "We recognized that disease or injury contracted as a result of some abnormal and unforeseen condition in the employment, arising more or less suddenly, is compensable, but that where disease results from exposure in the ordinary course of the employee's work, the weight of authority is to the effect that the disease is not compensable. In the course of the opinion, we said * * *: `The event which constitutes an accident is thus clearly a happening or occurrence in part at least external to the body itself. The physiological changes which may result in the workman's own body are consequences of the accidental event.'" State ex rel. Hussman-Ligonier v. Hughes, et al., 348 Mo. 319, 325, 153 S.W.2d 40, 42.
It is our opinion that the principles announced in the case of Joyce et al. v. Luse-Stevenson Co. et al., supra, are decisive of this case now at bar. It appears that there were no unforeseen or abnormal conditions present in the case at bar to cause claimant's illness. On the contrary, it appears that the disease from which claimant suffered resulted from exposure in the ordinary course of his work. In the Joyce case, supra, an infection developed in the employee's lungs as a result of exposure to cold and dampness in the ordinary course of employment. In the case at bar an infection developed in claimant's nose as a result of exposure to dust, and possibly heat, — a condition normal to the operation of appellant's business.
Nor is claimant's case aided by the heat exhaustion cases — Schulz v. Great Atlantic Pacific Tea Co., 331 Mo. 616, 56 S.W.2d 126; Kripplaben et al. v. Jos. Greenspon's Sons Iron Steel Co., 227 Mo.App. 161, 50 S.W.2d 752; and Bicanic et al. v. Kroger Grocery Baking Co., Mo.App., 83 S.W.2d 917. In speaking of such cases, the Supreme Court, in Joyce et al. v. Luse-Stevenson Co. et al., supra, said: "The courts of this state have also held that injuries or death caused by excessive heat or excessive cold to which a workman is exposed because of his employment to a greater degree than are the other members of the community are compensable under the Compensation Law. Schulz v. Great Atlantic Pacific Tea Co., 331 Mo. 616, 56 S.W.2d 126. On the other hand, in all of these cases there is present some abnormal and unforeseen condition in the employment arising more or less suddenly which can be pointed out as a definite positive factor of the compensated injury or death." Joyce et al. v. Luse-Stevenson Co. et al., 346 Mo. 58, 63, 139 S.W.2d 918, 920. (Emphasis ours).
Claimant stated that although August 16, 1946, was an extra hot day, the illness he suffered on that day was not caused by the weather, but was due to heat created by the furnace. There was no evidence that the heat created by the furnace was any greater than usual on August 16, 1946, October 1, 1946, or November 8, 1946. In fact, claimant himself testified that the heat cast off by the furnace was the same, day after day.
There was no medical testimony that claimant suffered from heat exhaustion on either of the days mentioned, or that the heat waves from the furnace on any of the days in question directly caused any objective symptoms of injury — a necessary element of accident under the statutory definition of that term. The gist of the medical testimony was that heat could cause an aggravation of claimant's allergy, which produced the illness he experienced. No doctor testified that, in his opinion, the heat of the furnace did, in fact, aggravate or produce the infection in claimant's nose.
From an examination of the whole record, we are of the view that the Commission could not have reasonably made the finding that claimant suffered an accident within the meaning of the Compensation Law. Joyce et al. v. Luse-Stevenson Co. et al., 346 Mo. 58, 139 S.W.2d 918; Row v. Cape Girardeau Foundry Co., Mo.App., 141 S.W.2d 113; Gillett v. Prairie Brass Metal Co. et al., Mo.App., 179 S.W.2d 494; Johnson v. Westinghouse Electric Mfg. Co., Mo.App., 192 S.W.2d 588.
The Circuit Court erred in affirming the award. The judgment appealed from is reversed.
HUGHES, concurs.
McCULLEN, J., concurs in separate opinion.
I concur in the opinion written by Anderson, Presiding Judge, herein because it is my sworn duty as a member of this court to follow the latest decisions of our Supreme Court on questions presented for our consideration.
The Supreme Court decisions cited in said opinion in support of the conclusion reached are without doubt in point and are controlling upon this court under our Constitution.
However, this case seems to me to be a striking example of a decision which, although legally correct and proper under the statute defining "accident" and the decisions construing said statute, nevertheless defeats the laudable primary purpose of the Legislature which was to provide compensation for workmen sustaining injuries "arising out of and in the course of" their employment. Mo.R.S.A. § 3695.
It is well known that the broad fundamental purpose of the Legislature in enacting the Workmen's Compensation law was to shift the burden of loss resulting from injuries to workmen in industry from the frequently helpless workmen and to place it on the industry in which they were engaged, and to distribute such loss by providing for insurance of employers to enable them through insurance to make payment for such losses. The law was intended to provide an inexpensive procedure to help injured workmen by granting them positive, definite and certain compensation for their injuries "arising out of and in the course of" their employment instead of leaving the workmen to bear such losses alone.
Here is a case in which a workman, according to competent evidence, suffered from a condition of injury which arose out of and in the course of his employment but for which the courts cannot properly allow him compensation because the evidence does not bring his case within the technical definition of the word "accident" provided in the statute. This is just one of a number of similar cases in which the courts have been compelled to deny injured workmen compensation because of technical law, even though there is no suggestion of fraud or malingering.
It is not the province of courts to legislate, but I think it is not improper for me to point out for the Legislature's consideration the fact that the definition of "accident" in our Workmen's Compensation law, as it has worked out through the years, is entirely too restrictive to do justice in many cases where workmen have clearly sustained injuries, which under the fundamental purpose of the Legislature, should be compensable but must be declared non-compensable because of such definition. It is, of course, a matter of legislative policy whether or not any change shall be made in the statute.