Opinion
Dissenting opinion.
For majority opinion, see 272 S.W.2d 820.
McFADDIN, Justice (dissenting).
When we adopted the Workmen's Compensation Law, Ark.Stats. § 81-1301 et seq., we were told that it would make sure that the worker received compensation when he was injured: he would not be obliged to have a jury trial to prove negligence, as his compensation would be paid without such proof. But in the present case the worker's dependents are denied compensation because they cannot prove exactly the nature of the injury and all about how the injury can arise and develop: because the widow and children cannot prove-by all the witnesses-what causes leukemia, the Commission holds that the injury has not been established as having grown out of, or caused by, the work. I refuse to agree to any such result.
In Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S.W.2d 574, 577, Mr. Justice Carter used this clear language: ‘ The theory behind the Workmen's Compensation Act is this: Every industry exposes those engaged in it to certain risks of being hurt,-such risks arising out of the mere fact of being engaged in that industry. The policy behind the act is the decision of the people that it is fairer to charge as an expense of the industry (to be paid by the ultimate consumer just as he pays for the raw materials used by the industry) a part of the losses arising from the risks, to which those engaged in that industry are exposed by reason of being so engaged, than it is to let such losses fall entirely upon the employee who gets hurt.’
I. Injury In The Course Of The Work.
When stripped of all the big words, the facts here are simple: prior to August 13, 1950, Orlicek was a well, strong, healthy man. He had been engaged in rice farming nearly all of his adult life and had performed hard labor. In May, 1950, he passed a physical examination for a life insurance policy. On August 13, 1950, while working for appellant, Orlicek was exposed to fumes and smoke so strong that he and his co-workers would have been asphyxiated had they not lowered themselves on a rope 30 feet to the ground. Orlicek allowed his fellow-workers to go down first, and therefore, suffered more from the fumes and the smoke than any of the others. When all the workers reached the ground, the exposed parts of their bodies were covered with black soot. They were described as gagging and coughing. They tried to continue their work for that day. The next day Orlicek was so sick that he could work only until noon. He compained of a pain in his chest and was treated by his doctor. He did not respond to the treatment and was unable to resume work. He never worked again; and died on November 4, 1950. The claim for compensation by Mrs. Orlicek and the minor children is based on the contention that Orlicek's illness and ensuing death were the result of an accidental injury-i. e., the exposure to, and inhaling of, the smoke and fumes from the burning rubber and acetylene, and that this occurred in the course of his employment, and either caused or aggravated leukemia, from which he died.
The Commission has said that the burden was on Mrs. Orlicek and her children to prove that the smoke, fumes, etc., caused or aggravated the pre-existing leukemia condition; and this burden is in the face of the statement by the insurance carrier's doctor-witnesses that no one knows what causes leukemia. How great is the burden that the widow and her children must bear!
Here is the language of the Commission's opinion: ‘ The burden of proof rests upon the claimants to establish the causal connection as a probability growing out of the evidence. The obscureness of the origin of leukemia and the paucity of knowledge concerning it is not sufficient to remove the burden of proof. We must rely on such medical knowledge as is available from competent sources, even though it is not all that might be desired.’
Prior to inhaling the smoke and fumes, Orlicek was a well, strong man; and he was never well a day after such inhalation. He tried to work the next day and was unable to do so, and complained of a feeling ‘ like a brick’ in his chest. Here we have a worker subjected to toxic fumes and great hazard, and collapsing from the result of work, and yet his family is denied compensation. The very purpose of the Workmen's Compensation Law was to allow compensation in such a case; and irrespective of what may or may not cause leukemia, I say that the facts here make a clear case for compensation.
II. What Causes Leukemia.
But when we get to the scientific question as to whether the inhaling of the toxic fumes was a contributing cause of Orlicek's death, I say a case has been made for compensation. In addition to many reports, a total of seven doctors testified in the case regarding this matter of leukemia.
(1) Dr. Ledbetter gave as his opinion that the shock and the breathing of the fumes could be a contributing cause to Orlicek's death.
(2) Dr. Trotter said he believed it was entirely possible for Orlicek to have contracted leukemia under the conditions that existed in this case; and assuming that Orlicek had chronic leukemia, Dr. Trotter believed it would be possible for his chronic leukemia to have been made acute by exposure to the toxic fumes.
(3) Dr. Porter Rodgers testified that the inhaling of the fumes could be a contributing cause to the origin of lymphatic leukemia.
(4) Dr. Rollins gave as his opinion that Orlicek developed an upper respiratory infection from inhaling the fumes and smoke and that the upper respiratory infection caused the leukemia.
(5) Dr. Jones testified that he did not see Orlicek until August 30th; and while Dr. Jones could find no connection between the inhaling of the fumes and the leukemia, he frankly said that he had no idea what caused leukemia; that the cause was unknown; and that he did not consider himself a specialist on leukemia. Dr. Jones said that medically speaking, the origin of leukemia is unknown.
(6) Dr. Harris did not see Orlicek until the last of September, 1950, and by that time the diagnosis of leukemia had been made. While Dr. Harris stated that in his opinion the inhalation of the smoke would not have caused or aggravated the leukemia condition, yet Dr. Harris frankly stated that the cause of leukemia is not known.
(7) Dr. Wilbur said that case histories, from the chimney-sweeps in England on down to the present, showed some connection between coal tar deposits and leukemia; but Dr. Wilbur did not think Orlicek got enough concentration of these substances to produce leukemia. Dr. Wilbur frankly stated that he did not know what caused Orlicek's leukemia; and that nobody knew.
So with seven doctors testifying, we have four who give it as their professional opinion that Orlicek's death was caused by his work, and three who say they do not know what causes leukemia. This negative testimony , of not knowing what causes leukemia, certainly is not positive testimony to support the insurance carrier's position in urging the Commission to deny compensation. So even if we get down to ‘ what causes leukemia’ , I maintain that the Commission should have allowed compensation.
III. Presumptions.
Finally-and quite apart from the merits-I dissent from that part of the majority opinion which says that under the present law there is no presumption favoring the worker. I maintain there is as much a presumption under the present 1948 law as there was under the previous 1939 law.
Section 24 of the 1939 law, Act No. 319, said: ‘ In any proceeding for the enforcement of a claim for compensation under this Act, there shall be a prima facie presumption, (1) that the claim comes within the provisions of this act , * * *.’
Section 24 of the 1948 law, Acts 1949, p. 1420, says: ‘ In any proceeding for the enforcement of a claim for compensation, the following prima facie presumptions shall exist: (1) that the Commission has jurisdiction: * * *.’
The 1939 Act says the claim ‘ comes within the provisions of this Act’ ; and the 1948 Act says ‘ the Commission has jurisdiction’ . These words mean exactly the same thing: the claim would have to come within the provisions of the Act before the Commission has jurisdiction; and if the Commission has jurisdiction, then the claim comes within the provisions of the Act. I cannot understand what the majority means by claiming that these words make any difference in the presumptions that arise under the Act; and this is an additional reason for my dissent.
For the reasons herein stated, I respectfully dissent from the majority opinion.