Barr v. Vickers, Inc.

• Citation: 648 S.W.2d 577
• Decision Date: 18 February 1983
• Docket Number: No. 12708,12708
• Parties: Melvin Leroy BARR, Claimant-Appellant, v. VICKERS, INC., Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 577

648 S.W.2d 577

Melvin Leroy BARR, Claimant-Appellant, v. VICKERS, INC., Defendant-Respondent.

No. 12708.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 18, 1983.

Motion for Rehearing Overruled and to

Transfer to Supreme Court Denied

March 14, 1983.

Ross T. Roberts, William J. Fleischaker, Roberts and Fleischaker, Joplin, for claimant-appellant.

Herbert Van Fleet, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.

PREWITT, Judge.

Claimant sought benefits under the workmen's (now workers') compensation law because he had the occupational disease of silicosis. See §§ 287.063, RSMo Supp.1975, and 287.067, RSMo 1969. ¹ Following a hearing, the administrative law judge denied the claim on May 17, 1979. Claimant appealed and on May 11, 1981, the Industrial Commission reversed the administrative law judge and entered an award in claimant's favor. ² On March 26, 1982, the circuit court determined "that there was not sufficient competent evidence to warrant that a hazard of the disease of silicosis existed in the employee's work environment" and reversed the award of the Industrial Commission.

The questions here are whether the evidence was sufficient for the commission to find that claimant is disabled due to silicosis and that his employment with defendant exposed him to the hazard of silicosis for ninety days after August 13, 1974. See § 287.063.2, RSMo Supp.1975. ³ The circuit judge reviewing this matter made a careful and detailed review of the evidence, which showed that he had carefully read and considered the testimony. He reached the conclusion that the evidence was not sufficient. Giving the deference that we must to the commission, we reach a contrary result.

Our review is of the commission's award, and only when that award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence do we disturb it. Malcom v. La-Z-Boy Midwest Chair Company 618 S.W.2d 725, 726 (Mo.App.1981). The commission is the judge of the credibility of witnesses and a court does not substitute its view of the facts for those found by the commission if the commission's findings are supported by sufficient competent evidence. Id. See also § 287.490.1, RSMo 1969.

In a workmen's compensation proceeding, all doubts should be resolved in favor of the employee and in favor of coverage, Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 423, 430 (Mo.App.1965), but that does not extend to validating a claim lacking some essential element. Welker v. MFA Central Co-Operative, 380 S.W.2d 481, 487 (Mo.App.1964).

While the claimant does not sustain his burden by showing a possibility that he was exposed to the hazard of silicosis, his burden is satisfied if he shows a reasonable probability that he was exposed and such a probability is a sufficient basis for the commission to find for him. Smith v. Terminal Transfer Co., 372 S.W.2d 659, 664 (Mo.App.1963); Leonard v. Fisher Body Co. St. Louis Division of General Motors Corp., 137 S.W.2d 604, 610 (Mo.App.1940). "Probable" means that it appears to be founded in reason and experience which inclines the mind to believe, but leaves room for doubt. Welker v. MFA Central Co-Operative, supra, 380 S.W.2d at 486.

Claimant was employed as a machine operator at defendant's plant in Joplin from June 16, 1969, through May 5, 1975. He apparently has not been employed since then. Defendant is engaged in the manufacture of hydraulic pumps and motors. Claimant's work consisted mainly of drilling and milling upon cast iron pump housings and parts. The parties stipulated that approximately 50% of the housings and housing parts upon which he worked were cast iron parts produced by "sand casting".

Carl Brandt, an expert witness called by claimant, described the process of sand casting. He said that a mold of the part is produced by creating a replica of the part in separate halves from wood, plastic or metal. The replica of one-half of the part is placed in a box and "silica sand" bonded by clay or other material is tightly packed around it. The replica is then removed and the sand allowed to partially dry. This is repeated with the other half and then the molds are combined. Molten metal is then put in the mold to form the part. After the part has cooled it is removed. Silica sand is picked up in the metal during the process. It is generally found in the first one-eighth to one-sixteenth inch of the surface but can exist all through the casting. It can also be present in "sand pockets".

Brandt testified that "the sources of" silicosis from the castings is created "by grinding or several other processes of metal removal" which causes "a likelihood that ... micro-sized particles of silica sand can be placed in the air and thereby inhaled." He stated that claimant's work with the parts would cause "free-floating silica" to be in the air. If a drill bit hit a sand pocket "it is likely that the sand particles would become airborne" and part of them would "become free-floating silica". The amount thrown off would be greater than the average person on the street would encounter in the air.

Claimant testified that many of the housings he worked on had "sand holes" and some contained so much sand that they would break because it made them "rotten". He stated that using the machines on the parts would cause large amounts of dust to fly and the dust would create difficulty in his breathing. He testified that when he went home from work his clothes would look like he "had worked in a coal mine all day long. They was dusty and that stuff all over them. You could take them off and shake them like that there at their (indicating) and the dust would just roll." Previous to his employment with defendant, claimant had worked for seventeen years in coal mines.

A medical physician testified that claimant was "diagnosed, on the basis of his physical findings and x-ray, as having black lung disease, or so-called pulmonary silicosis, pulmonary emphysema, a history of possible pulmonary tuberculosis, and chronic obstructive pulmonary disease" and was thereby "permanently disabled" from employment. He testified that claimant had some chronic lung disease previous to being employed by defendant but his employment there "was an aggravating factor in bringing about his present condition". He stated that emphysema "is a destructive disease of the lung" and silicosis an "obstructive disease" and that "the obstructive element of his disease was probably greater than the destructive element". Another medical physician testified that claimant had "pneumoconiosis, probably silicosis, and secondarily could be chronic restrictive and obstructive lung disease."

Defendant contends this evidence shows nothing more than that claimant was suffering from one of two conditions, one of which the defendant would not be liable for. We do not agree. The evidence of the two physicians established that while claimant had other lung diseases, silicosis was primarily responsible for his total disability. Where silicosis was found to be a major contributing cause of the death of a former employee, in keeping with the liberal construction in favor of claimants, it was ruled that the widow was entitled to workmen's compensation benefits, notwithstanding that silicosis was not found to be the sole cause. Johnson v. State Workmen's Compensation Commissioner, 155 W.Va. 624, 186 S.E.2d 771 (1972). In Fitterling v. Workmen's Compensation Appeal Board, 21 Pa.Commw.Ct. 67, 343 A.2d 386, 388 (1975), the court noted that compensation is allowed when a claimant's total disability or death is caused by silicosis accompanied by active pulmonary tuberculosis, even though silicosis alone would not have been totally disabling. See also Inland Steel Co. v. Mosby, 375 S.W.2d 268 (Ky.1964) (silicosis and emphysema).

P.G.V. Babu, a medical physician whose qualifications were not questioned, stated in response to a hypothetical question ⁴ that "based upon reasonable medical certainty" it was "highly likely" that claimant was exposed to the hazard of silicosis. A few questions later he stated without qualification that based upon the facts in the hypothetical question that claimant was exposed to the hazard of silicosis.

The trial court has broad discretion in the matter of hypothetical questions to an expert witness. Skelton v. General Candy Company, 539 S.W.2d 605, 614 (Mo.App.1976). That maxim should also apply to the commission. While it is not essential that a hypothetical question include all material facts in evidence, it must fairly hypothesize the material facts reasonably relevant to, and justly present, the questioner's theory of the case so that an answer is of assistance to the trier of fact. Odum v. Cejas, 510 S.W.2d 218, 222 (Mo.App.1974); Gavan v. H.D. Tousley Company, 395 S.W.2d 266, 270 (Mo.App.1965). It appears to us that the question sufficiently set forth the relevant facts of claimant's theory.

Defendant also contends that the question assumes facts not in evidence. We are only concerned with deficiencies in the question to which a specific objection was made at the hearing. See Skelton v. General Candy Co., 539 S.W.2d 605, 614 (Mo.App.1976). Contentions were made there that paragraphs 5 and 6 were not supported by the evidence. Our review of the testimony of Carl Brandt and claimant convinces us that those matters are in evidence.

Brandt stated that the imbedding of sand in the metal is "true with any sand cast, cast iron casting" and it may exist on the surface. This supports paragraph 5. Paragraph 6 appears to be based on a combination of claimant's testimony that eight or ten out of every hundred pieces he worked on had sand pockets and Brandt's testimony that 50% of pieces with sand pockets would produce silica when milling them and when that occurred there is a likelihood that micro-sized particles of silica sand can be placed in...