Bennett v. Bunker Hill Co.

• Decision Date: 17 February 1965
• Docket Number: No. 9315,9315
• Parties: Dorothy BENNETT, formerly Dorothy Lunsford, on her own behalf as surviving widow of Leonard Lester Lunsford, Deceased, and as natural guardian of William Leonard Lunsford, minor dependent of deceased, Plaintiff-Appellant, v. The BUNKER HILL COMPANY, Self-insured employer, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 270

399 P.2d 270

88 Idaho 300

Dorothy BENNETT, formerly Dorothy Lunsford, on her own behalf as surviving widow of Leonard Lester Lunsford, Deceased, and as natural guardian of William Leonard Lunsford, minor dependent of deceased, Plaintiff-Appellant, v. The BUNKER HILL COMPANY, Self-insured employer, Defendant-Respondent.

No. 9315.

Supreme Court of Idaho.

Feb. 17, 1965.

McClenahan & Greenfield and Gideon H. Oppenheimer, Boise, for appellant.

Brown, Peacock & Keane, Kellogg, for respondent.

McFADDEN, Justice.

Claimant Dorothy Bennett, appellant herein, was formerly Dorothy Lunsford, the widow of Leonard Lester Lunsford, deceased. She filed a claim for benefits under the Occupational Disease Compensation Law (Chapter 12, Title 72, I.C.) following the death of her husband, on her own behalf and as the natural guardian of William Leonard Lunsford, a minor child of herself and decedent.

Leonard Lunsford, an employee of The Bunker Hill Company, respondent (herein referred to as the company), died February 10, 1961. The claimant contends that her former husband's death, which was caused by a coronary thrombosis, was complicated with lead poisoning, an occupational disease, contracted by him by reason of injurious exposure to the hazards of lead dust in the course of his employment and that she is entitled to benefits under the statute. Hearings were held before the Industrial Accident Board on the issues presented by her petition for hearing and the company's answer thereto. The Board entered its order denying the claim, from which order claimant appealed.

The basic issue before the board was stated to be:

'Was the death of the workman, Leonard Lester Lunsford from coronary thrombosis, a disease noncompensable under the Occupational Disease Compensation Law (and not herein attributed to an accidental cause) accelerated or in any wise contributed to by lead poisoning, a compensable occupational disease?'

In her appeal claimant asserts that certain findings of fact entered by the board are unsupported by the evidence; that the board's ruling of law is not based on substantial, competent evidence; and that the board's findings of fact do not, as a matter of law, support its order denying her claim. Her assignments of error encompass these assertions.

Many of the facts before the board are without dispute and can be summarized as follows: The decedent, Leonard Lunsford, was first employed by the company in April 1955 and worked until June 1956, during which period he was employed in the company's lead smelter. He quit in June 1956 and returned to his former home in Arkansas, where he remained until August 1959. The nature of his work in Arkansas does not appear.

On August 12, 1959, the decedent resumed employment with the company in its smelter and continued in this work until May 5, 1960, when a strike caused suspension of the company's operations. The strike continued approximately seven and a half months, during which period of time the decedent worked as a pond man for a sawmill at Craigmont, Idaho. He resumed his employment with the company on December 27, 1960, and continued working for the company until February 10, 1961, the date of his death, at which time he was 52 years of age. His employment was in the smelter as an assistant conveyor operator, unloading cars. No autopsy was performed.

A number of medical reports, a copy of his death certificate, laboratory reports of his urine samples, and hospital and clinical records pertaining to decedent were admitted in evidence. The testimony of five doctors was submitted to the board for consideration, claimant's medical witnesses being Dr. Myhre, a physician practicing at Spokane, Washington, whose specialty is that of internal medicine; Dr. Ward, a physician practicing at Boise, Idaho, a general practitioner; and Dr. Helen Beeman, a pathologist of Boise. Dr. Whitesel of Kellogg was the decedent's attending physician during the years in question and was a witness for both the claimant and the company. Dr. Staley, a general practitioner at Kellogg, was called as a witness by the company.

There is no substantial conflict in the record as to the decedent's personal history, employment record and medical reports; however, there is a marked conflict in the opinions expressed by the various doctors on the ultimate issue of whether there was a causal connection between the decedent's record of 'lead poisoning' and the coronary thrombosis which was the ultimate cause of his death.

The medical record shows that Mr. Lunsford was hospitalized twice during his employment with the company. The first time was in October 1959 for acute appendicitis. An appendectomy was performed and he was away from his employment for about a month. The second time he was hospitalized was in December 1959 when he was suffering from acute plumbism. He remained in the hospital about six days and was treated by medication and rest. A week after his discharge from the hospital he was again examined by his attending physician, Dr. Whitesel. A few days later he was released to resume his employment and did go back to work either in the latter part of December 1959 or the first part of January 1960. His attending physician advised that he not return to work in the company's lead smelter but that he seek work in the company's zinc plant. However, there was no opening for him in the zinc plant; whereupon the supervisor at the smelter consulted Dr. Whitesel about allowing Lunsford to return to work in the smelter. The doctor approved this request with the understanding that Lunsford 'would have a lead check every two weeks, * * *.' After returning to work in January 1960, urine samples were regularly taken during the time he worked that year. A union strike caused cessation of his work for seven and a half months. Samples were also taken January 24, and February 7, 1961, the last sample being taken only three days prior to his death.

Claimant contends that doubtful workmen's compensation cases should be resolved in favor of the awarding of compensation. This is a recognized rule to be applied in construing the workmen's compensation law. Kiger v. Idaho Corporation, 85 Idaho 424, 380 P.2d 208; Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404. But this rule cannot be expanded in the area of the board's factual determinations supported by substantial, competent evidence. Idaho Const. Art. 5, § 9, states: '* * * On appeal from orders of the industrial accident board the court shall be limited to a review of questions of law. * * *' I.C. § 72-609, which establishes the appellate procedure from the board, provides:

'Upon hearing the court may affirm or set aside such order or award but may set it aside only upon the following grounds, and shall not set the same aside on any other or different grounds, to-wit:

'(a) That the findings of fact are not based on any substantial, competent evidence;

* * *

* * *

'(d) That the findings of fact by the board do not as a matter of law support the order or award.'

Claimant would have this court, in its examination of the record, apply the further rule that positive evidence is entitled to more weight than negative evidence. In this connection claimant argues that the testimony of her medical experts, to the effect that there was a causal connection between the decedent's lead poisoning and the coronary thrombosis which caused his death, should be entitled to more weight or credence than the testimony of the company's medical witnesses who stated there was no such connection. For this proposition claimant cites several authorities, including Beaver v. Morrison-Knudsen Company, 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399, and Young v. Herrington, 61 Idaho 183, 99 P.2d 441.

In Beaver v. Morrison-Knudsen Company, supra, the following statement is to be found:

'Positive expert testimony will prevail over negative expert testimony. Womack v. New Orleans Public Service, Inc., 5 La.App. 71. The expert testimony on behalf of claimant was of a positive nature, respondents' of a negative, if it be conceded that there is negative testimony on the material issue, namely: Whether the breathing of silica dust rock by the claimant set up an irritation in his lungs and lighted up his tuberculosis.'

This case was decided in February 1934. In 1935 the legislature adopted H.J.R. 1, proposing an amendment to Idaho Const. Art. 5, § 9, as it then existed, by adding to such section the following sentence: 'On appeal from orders of the industrial accident board the court shall be limited to a review of questions of law.' This proposed amendment was ratified at the general election in November 1936. In 1937 the legislature, by Chap. 175, S.L.1937, amended I.C.A. § 43-1409 to its present wording, I.C. § 72-609.

Subsequent to Beaver v. Morrison-Knudsen Company, supra, this court in Young v. Herrington, supra, stated:

'Bearing in mind the rule that positive testimony is entitled to more weight than negative testimony * * * the only reasonable conclusion is that the accidental injury did contribute to Mr. Young's total disability and compensation should be awarded.'

The rule that positive evidence is entitled to more weight than negative evidence may be employed as a guide by the finder of the facts in evaluating testimony in resolving factual issues, but it has no place in this court's appellate examination of a record in view of the constitutional and statutory limitations upon the scope of review. The weight to be given the testimony, the credibility of the witnesses and the reasonable conclusions and inferences to be derived from the record are peculiarly within the province of the board, and not of this court. Duerock v. Acarregui, 87 Idaho 24, 390 P.2d 55; Comish v. J. R. Simplot Fertilizer Company, 86 Idaho 79, 383 P.2d 333. This court's review of a record is solely for the purpose of determining questions of law, including whether there is...