Opinion
No. 74-203
Decided May 7, 1975.
Workmen's compensation — Occupational disease — Dermatitis from contact with fabrics — Not scheduled under R.C. 4123.68 — Compensable under R.C. 4123.68(BB).
Where a claimant alleges contracting an occupational disease which is not scheduled in R.C. 4123.68, or which is scheduled but not alleged to be due to the nature of any process described in the same subsection, then, where applicable, recourse may be had under subsection (BB) for an award of compensation.
APPEAL from the Court of Appeals for Franklin County.
On June 24, 1971, Esther Sneperger, claimant, an appellee herein, filed with the Bureau of Workmen's Compensation a medical report, and an application which alleged that she had contracted an occupational disease, contact dermatitis, as a result of handling a wide variety of cloth, fabrics, leather, and sponge rubber in the course of her employment as a seamstress with appellant, General Motors Corporation.
The medical report relates that Leonard G. Katz, M.D., conducted a dermatological evaluation of Mrs. Sneperger on April 30, 1971. He observed a chronic, scaly, sharply demarcated eczema over the palms and fingers of Mrs. Sneperger, "the interesting part [of which] is that the eczema is exactly at the point of contact with the materials she sews," and noted that "she was patch tested to all of the fabrics that she brought into the office, as well as to each side of the leather fabrics and each side of the sponge rubber fabric." Mrs. Sneperger returned to Dr. Katz' office on May 3, 1971, when the doctor's nurse noted that Mrs. Sneperger had a vesicular reaction to "all of the fabrics patch tested except the blue cloth."
Four days later, claimant again was examined by Dr. Katz, who reported that "her hands were twenty-five percent better wearing gloves [on the job], but in order to sew properly she was forced to cut out some of the glove ends and was developing mild eczema at these points. I believe that she will be unable to work with these fabrics in the future."
On December 15, 1971, the Administrator disallowed the claim, apparently upon the assumption that it was filed under subsection (K) of R.C. 4123.68.
Upon reconsideration, the claim was allowed and the employer ordered to pay for necessary medical treatment.
The Cleveland Regional Board of Review reversed the order of the Administrator and reaffirmed the initial disallowance of the claim.
The claimant appealed this decision to the Industrial Commission, which made the following order:
"* * * The commission further finds from proof of record that claimant's occupation with the named employer exposed her to materials from which, by medical history, she developed contact dermatitis of both hands; therefore, although such disability is not compensable under paragraph (K) of Section 4123.68 R.C., it is compensable under the provisions of paragraph [BB] of said section. It is, therefore, ordered that the finding and order of Cleveland Regional Board of Review dated September 26, 1972, be vacated, that claimant's appeal be granted to the extent of this order."
On July 20, 1973, General Motors filed a complaint in mandamus in the Court of Appeals for Franklin County. That court denied the writ, finding that the commission had not abused its discretion in determining that the contact dermatitis contracted by Mrs. Sneperger was an occupational disease within the meaning of R.C. 4123.68(BB).
The cause is before this court upon an appeal as a matter of right.
Messrs. Baughman, Hayes, Savidge Willacy and Mr. Thomas P. Hayes, for appellant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey and Mr. Robert L. Holder, for appellee Industrial Commission.
Messrs. Rollins Mosesson and Mr. N.D. Rollins, for appellee Esther Sneperger.
R.C. 4123.68, in pertinent part, provides:
"Every employee who is disabled because of the contraction of an occupational disease as defined in this section, or the dependent of an employee whose death is caused by an occupational disease as defined in this section, is entitled to * * * compensation * * *.
"The following diseases shall be considered occupational diseases and compensable as such when contracted by an employee in the course of his employment in which such employee was engaged at any time within twelve months previous to the date of his disablement and due to the nature of any process described in this section.
"SCHEDULE
"Description of disease or injury and description of process:
"* * *
"(K) Infection or inflammation of the skin on contact surfaces due to oils, cutting compounds or lubricants, dust, liquids, fumes, gases, or vapors: Any industrial process involving the handling or use of oils, cutting compounds or lubricants, or involving contact with dust, liquids, fumes, gases, or vapors.
"* * *
"(BB) All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment."
Appellant states its basic position as "* * * to be entitled to benefits under * * * [R.C. 4123.68 (BB)] the specific disease [contact dermatitis] must not be covered elsewhere in the statute." Appellant cites as authority therefor State, ex rel. Superior Foundry, v. Indus. Comm. (1959), 168 Ohio St. 537, and argues that the disease is "covered" by subsection (K), supra. We disagree for several reasons.
First, although it may be argued that contact dermatitis is included within the disease or injury description of subsection (K), the description of the process (which follows the colon, supra) in no way relates to the process involved in this case. Paragraph two of R.C. 4123.68 requires that the disease be "due to the nature of any process described * * *." (Emphasis added.)
Secondly, appellant's reliance upon State, ex rel. Superior Foundry, supra, is wholly misplaced because the question there presented was: From the last date of employment until the contraction of silicosis, did the time period which is specified in paragraph two of R.C. 4123.68 (12 months) control, or did the time period specified in the subsection dealing specifically with silicosis (8 years) control? This court merely held that the specific time provision for silicosis controlled the time provision specified for occupational diseases generally.
Thirdly, it appears that by enacting R.C. 4123.68, the General Assembly has recognized a circumstantial likelihood that a scheduled disease, accompanied by a scheduled process, constitutes a valid occupational disease claim, and that for other processes or diseases, claimants should be put to their proof in establishing the three criteria for "other occupational diseases" contained in R.C. 4123.68 (BB).
Accordingly, this court holds that where a claimant alleges contracting an occupational disease which is non-scheduled in R.C. 4123.68, or which is scheduled but not alleged to be due to the nature of any process described in the same subsection, then recourse may be had to subsection (BB) for an award of compensation.
Assuming, arguendo, that R.C. 4123.68(BB) was the proper subsection to apply in this case, appellant next argues that the commission misapplied its provisions as a matter of law. Based upon the record in this case and the decision announced this day in State, ex rel. Ohio Bell Telephone Co., v. Krise (1975), 42 Ohio St.2d 247, this court refuses to disturb the findings and decision of the Industrial Commission. The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.