B. F. Goodrich Co. v. Martin

• Decision Date: 07 July 1971
• Docket Number: 6 Div. 92
• Citation: 253 So.2d 37,47 Ala.App. 244
• Parties: The B. F. GOODRICH COMPANY v. Lawless MARTIN.
• Court: Alabama Court of Civil Appeals

Page 37

253 So.2d 37

47 Ala.App. 244

The B. F. GOODRICH COMPANY v.Lawless MARTIN.

6 Div. 92.

Court of Civil Appeals of Alabama.

July 7, 1971.

Rehearings Denied July 28, 1971.

Jones, McEachin, Ormond & Fulton, and James F. Hughey, Jr., Tuscaloosa, for appellant.

Edward F. Morgan, Tuscaloosa, for appellee.

WRIGHT, Judge.

This matter comes by way of writ of certiorari from the Circuit Court of Tuscaloosa County, Alabama.It involves a claim for Workmen's Compensation by appellee, Lawless Martin, against appellant, The B. F. Goodrich Company, a Corporation.

Martin was employed in the tire plant of appellant in Tuscaloosa in 1949.He remained as an employee, though off from work from time to time with various illness until 1968, when he retired for medical reasons not connected with this case.In November of 1964, Martin assumed a job in which he applied cement or glue to strips of rubber as they passed by on a conveyer.In 1965, he began to have asthmatic attacks while at work, particularly on Sunday night shifts after the plant had been closed during the weekend.He had experienced asthma before but it became aggravated in 1965.In the early part of 1966, he began experiencing headaches, sore throat and nausea while at work, and had an onset of glossitis or ulcerated mouth, tongue and throat.Martin was off from his job several times in 1966 with such ulcers and was treated regularly by doctors for them.They were so bad at times that they would extend downward into his throat.In August of 1966, a rash appeared on his body and limbs.The nurse at the plant dispensary was informed of these various conditions and made notations of them in Martin's medical record.She further noted in the records that appellee's doctor had advised that his problems were resulting from contact with something on his job and that it could be the cement he was placing on the rubber.

On March 25, 1966, appellee's physician wrote a letter to the plant chief of personnel advising him of Martin's condition stating the cause to be an allergy and recommending placing him on a different job.On December of 1966, at the suggestion of his doctor, appellee requested from his superintendent a sample of the cement for testing for allergic reaction.He was denied such sample and was told the company knew what was in it.

Appellee's union president had discussed with appellant his medical problems and requested a job change for him in 1966.In January of 1966, appellee suffered an attack of ulcers and was given a different job by appellant.However, the new job was still in the general area of the previous one and the odor of the cement was present in the new location.Shortly after returning from a vacation and beginning the new job, Martin went to work on Sunday night, April 9, 1967.He had recovered from his most recent attack of ulcers.By the end of his shift on April 10, 1967, Martin was suffering from an allergic reaction which developed into ulcers so severe he was unable to return to work until October 1967.While appellee was off from work, appellant, in July 1967, assigned Martin to another job completely away from the area where the cement was located.When he returned to this new job in October 1967, he had no further allergic attacks and had had no problems of such nature up to the time of his retirement from appellant's employ.The attack of April 9--10, 1967, is the time of accident and injury for which recovery of compensation was sought in the suit filed.It is from the decree awarding him compensation that certiorari was brought to this Court.

The decree for review was entered on October 5, 1970.It awarded appellee Workmen's Compensation for injury resulting from an accident suffered on April 10, 1967.The award was comprised of an amount of $926.00 for temporary total disability from April 10, until October 9, 1967; permanent partial disability of the body as a whole of 17% With award of $13.26 per week for 272 weeks.There was awarded a total of 299 weeks for total temporary and permanent partial disability.There was further award of $384.00 for medical expense.

Appellant has assigned numerous errors in the trial below.We will consider them in the order argued in brief.

Assignments 1, 2, 3, 4, 5, 6 and 8 aver an insufficiency of evidence to support the finding of the trial court that appellee was injured as the result of an accident arising out of and in the course of his employment by appellant.

We think the evidence without question, supports the finding that appellee suffered an injury arising out of his employment with appellant.The injury was real and disabling.The evidence was conclusive that appellee, over a period of time had become sensitized and violently allergic to some substance emitting allergens.That substance plainly was present on the site of his job with appellant.The evidence was more than sufficient that the offending substance was the cement used as glue on the rubber.The expert medical testimony was without dispute that direct contact with the offending substance was not necessary for a reaction to occur.This is more apt to be true after a long period of direct or close contact during which one has built up extreme sensitivity.

Though appellee had been reassigned by appellant to a job which did not bring him in direct contact with the cement, it was undisputed that he was still in the vicinity and was sufficiently close to smell the cement.The testimony was that the allergens emitted by a substance were minute microscopic particles which could be carried by air currents over a distance.The fact that the cement was sufficiently close to smell indicated the presence of allergens in the air.

There is no dispute that appellee began to experience an allergic reaction, identical with that he previously had on his old job, as soon as he began his shift.By the end of the shift the symptoms were present and he subsequently suffered asthma and ulcers of the mouth, tongue and throat as before.There is no dispute that he was totally disabled and required extensive medical treatment for a period of some 27 weeks.

Thus the question of injury and resultant effect was shown.The question remaining as to the injury is--Did the injury result from an accident arising out of and in the course of his employment as defined by the Workmen's Compensation Act?

The trial court in its decree did so find, and our review of the record convinces us that there was substantial legal evidence to support such finding.

We will be the first to admit that there are some decisions of the appellate courts of this state and other states with similar statutes that are difficult to distinguish or reconcile on the problem of applying the definition of the word 'accident' set out in Title 26, Section 262(i),Code of Alabama 1940.The problem seems to have arisen in most cases in applying the term 'accident' to cause or effect.Was the injury or disease caused by a sudden, unforeseen or unusual occurrence or was the injury or disease sudden, unforeseen or unusual though arising during the normal and usual cause of employment?

Alabama appellate decisions have granted coverage under Workmen's Compensation in both types of cases.In the case of Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530, compensation was denied an employee for injuries sustained from working in an unventilated room filled with fumes, dust and small particles of chemical mixture which had gradually accumulated over a period of time and did not appear suddenly and violently.Denial of compensation coverage was because the injury was not due to an 'accident.'In the cases of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, andGadsden Iron Works v. Beasley, 249 Ala. 115, 30 So.2d 10, compensation was allowed for heat exhaustion which arose out of and in the course of employment.Gulf States v. Christison, supra, was decided prior to Gentry v. Swann Chemical Co., supra, but was not cited therein.In the two cases cited above there was no unexpected and unforeseen event happening suddenly and violently causing the injury.In the case of Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288, an engineer's dependents were awarded compensation for his death due to pneumonia resulting from having waded in water and getting his feet wet.Again there was no sudden and unforeseen event happening suddenly and violently producing at the time injury to the physical structure of the body by accidental means, yet the Supreme Court found the injury due to accident.Each of the above mentioned cases allowing compensation, in reality, pivoted on cause of the injury.

The court in Gulf States said as follows:

'* * * If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute.Section 7596(i), Code;Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 139 So. 261;New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360;1 Honnold on Workmen's Compensation, p. 281, § 86.

'In connection with the sort of accident here involved, the principle to which most authorities give assent is that the harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, when not situated as he is when thus performing his service, and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure.Am. Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540;Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed....