Box v. Cessna Aircraft Co.

• Court: Kansas Supreme Court
• Writing for the Court: MILLER; Abbott
• Citation: Box v. Cessna Aircraft Co., 689 P.2d 871, 236 Kan. 237 (Kan. 1984)
• Decision Date: 26 October 1984
• Docket Number: No. 56391,56391
• Parties: Cecil C. BOX, Claimant-Appellee, v. CESSNA AIRCRAFT COMPANY, Defendant-Appellant, and The Hartford Accident & Indemnity Company, Defendant-Appellant, and Workers' Compensation Fund, Defendant-Appellee.

Page 871

689 P.2d 871

236 Kan. 237

Cecil C. BOX, Claimant-Appellee, v. CESSNA AIRCRAFT COMPANY, Defendant-Appellant and The Hartford Accident & Indemnity Company, Defendant-Appellant and Workers' Compensation Fund, Defendant-Appellee.

No. 56391.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. "Emphysema," as used in K.S.A. 44-5a01, is to be defined in accordance with the ordinary English and medical dictionary definitions of the term. It does not include chronic bronchitis.

2. In an appeal by the employer and the insurance carrier from the award in a workers' compensation case involving occupational disease, the record is examined and it is held:

a) There was substantial, competent evidence to support the trial court's finding that claimant suffered from chronic bronchitis and not from emphysema.

b) The burden of proof was upon the claimant to establish his right to an award of compensation by proving the various conditions on which his right depends by a preponderance of the credible evidence.

c) The trial court did not err in finding that claimant's occupational disease was compensable, or in failing to assess the award against the Workers' Compensation Fund.

Randall E. Fisher of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause, and Alvin D. Herrington, Wichita, of the same firm, was with him on briefs for appellants.

Robert L. Nicklin of Robert L. Nicklin, P.A., Wichita, argued the cause and was on brief for appellee Cecil C. Box.

Robert D. Steiger of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and was on brief for appellee Workers' Compensation Fund.

MILLER, Justice:

This is an appeal from the District Court of Sedgwick County in a workers' compensation case. The trial court found that the claimant, Cecil C. Box, had sustained 100% permanent disability resulting from an occupational disease as defined in K.S.A. 44-5a01, and entered judgment for the workman and against his employer, Cessna Aircraft Company, and its insurance carrier, The Hartford Accident & Indemnity Company. None of the award was assessed against the Workers' Compensation Fund. Cessna and The Hartford appeal.

The claimant began working for Cessna in August of 1964. He was in good health and had had no prior respiratory ailments. He worked on "squawks," defects that appear on an airplane after its manufacture is complete. The area in which he worked was in or very near the paint shop. Frequently other workmen would be painting the plane while claimant worked on it. There was considerable evidence that the air in the area was often heavy with paints, lacquers, thinners, solvents, cleaners, and other chemicals being sprayed or used. About 1972 the claimant had pneumonia and was hospitalized for about a week. He returned to work and first started having breathing problems in the summer of 1976. He went into the hospital for a few days and then returned to work, but his respiratory problems continued. He last worked on February 15, 1977. A claim was filed and this proceeding was instituted shortly thereafter.

Three physicians testified and the report of a fourth was admitted by stipulation. Claimant's treating physicians were Dr. Dillis L. Hart, who is board certified in the area of general surgery, and Dr. Richard W. Spann, board certified as an internist and also in the subspecialty of pulmonary disease. Dr. R. Lawrence Sifford, board certified in internal medicine, and Dr. Curtis C. Drevets examined the claimant for the respondent. Both Dr. Hart and Dr. Spann diagnosed the claimant as suffering from chronic bronchitis. The differences between emphysema, bronchitis and obstructive pulmonary disease or obstructive airway disease were discussed at length during the examination of these witnesses. Dr. Spann testified clearly that the claimant's predominant disease is not emphysema but is chronic bronchitis, and he expressed the opinion that the cause of the bronchitis in this case was work-related. Dr. Sifford found no emphysema, no chronic obstructive pulmonary disease, and in general found the claimant to be in excellent physical condition and able to do heavy work. He said that the claimant did have a little wheezing and a very slight amount of obstruction, but that he was physically healthy and had no disability. He expressed the opinion that claimant has mild intermittent bronchospasm and mild intermittent coughing, related to a mild bronchitis, caused in most probability by the inhalation of cigarette smoke. The letter from Dr. Drevets is written on the letterhead of the Wichita Clinic. It lists Dr. Drevets under internal medicine, allergy and pulmonary diseases. He expressed the opinion that claimant has mild obstructive airway disease. He expressed the suspicion that claimant's environment may have contributed in part to his current problem. Dr. Drevets did not consider the claimant disabled though he may have difficulty in returning to an environment where there are fumes or dust; but the doctor thought claimant had good enough pulmonary function to do other kinds of work.

There is extensive and conflicting evidence as to claimant's smoking history. He testified that he smoked cigarettes while he was in the service and then quit. He resumed smoking when he went to work for Cessna in 1964 and then quit in 1972 or 1973. During this time he smoked only about one-half pack a day. He has not smoked since then. There was evidence produced by the appellant, by way of Cessna medical records, indicating that claimant may have smoked more. This is also indicated by forms claimant filled out for the Disability Determination Services. Both sets of records contain inconsistent information. Claimant was required by Cessna to take an annual physical examination which was required of all employees in hazardous areas. Cessna's medical records consisted of forms claimant filled out at the time he took those examinations. The information thereon was conflicting. Respondent also presented a private investigator who testified she saw claimant smoking during the pendency of this action; claimant and two other witnesses disputed her testimony.

The district court announced its decision by way of letter memorandum. The court found that claimant had an occupational disease and that the disease was not emphysema. He found that Dr. Spann's training and experience was impressive, he being the only one of the four physicians who is board certified in the subspecialty of pulmonary diseases, the only one who has training in the effects of smoking and the cessation of smoking, and the only one who limits 90% of his practice to pulmonary and chest diseases. The court accepted Dr. Spann's testimony as the most credible and the most believable. The trial court found that the claimant's chronic bronchitis arose out of and in the course of his employment, and that he has suffered permanent total disability.

The issues raised on appeal deal extensively with the sufficiency of the evidence. Before turning to the issues, we should state the scope of our review and certain applicable principles. K.S.A. 44-501 provides:

"In proceedings under the workmen's compensation act, the burden of proof shall be on the claimant to establish his or her right to an award of compensation by proving the various conditions on which his or her right depends."

K.S.A.1983 Supp. 44-508(g) defines burden of proof, which reads:

" 'Burden of proof' means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true."

K.S.A. 44-5a01 reads in part as follows:

"Occupational diseases; treated as injuries by accident under workmen's compensation act; defined; limitations of liability; aggravations. (a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen's compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in the case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen's compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases.

"(b) 'Occupational disease' shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. 'Nature of the employment' shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases: Provided, That compensation shall not be payable for pulmonary emphysema or other types of emphysema unless it is proved, by clear and convincing medical evidence to a reasonable probability, that such emphysema was caused, solely and independently of all other causes, by the employment with the employer against whom the claim is made, except...