Brown Shoe Co. v. Fooks

• Citation: 228 Ark. 815,310 S.W.2d 816
• Decision Date: 03 March 1958
• Docket Number: No. 5-1513,5-1513
• Parties: BROWN SHOE COMPANY, Employer, Appellant, v. Clara C. FOOKS, Employee, Appellee.
• Court: Supreme Court of Arkansas

Page 816

310 S.W.2d 816

228 Ark. 815

BROWN SHOE COMPANY, Employer, Appellant, v. Clara C. FOOKS, Employee, Appellee.

No. 5-1513.

Supreme Court of Arkansas.

March 3, 1958.

Rehearing Denied March 31, 1958.

Renderer, Nolde & Kleinschmidt, St. Louis, Mo., Mehaffy, Smith & Williams and Robert V. Light, Little Rock, for appellant.

D. Leonard Lingo and Harry L. Ponder, Walnut Ridge, for appellee.

WARD, Justice.

The Workmen's Compensation Commission and the Circuit Court, on appeal, awarded appellee compensation [for a limited time] based on an occupational disease. Appellant, the employer, seeks a reversal on one ground only--'that there was not sufficient competent evidence in the record to warrant the making of the order or award.'

The following background facts are undisputed: Appellee, Clara C. Fooks, was employed by appellant, Brown Shoe Company, at its factory in Pocahontas from January 1947 until sometime in 1951, and also from March 17, 1956 until July 23, 1956. In the performance of her duties she sat on an adjustable steel chair or stool at a sewing table for a substantial portion of her eight hour workday. As a gauge stitcher, she worked at a sewing machine taking the shoes from a rack that was brought up to her. For some six weeks before July 23, 1956, appellee noticed pains in the buttock region, and on that date her doctor diagnosed her ailment as Ischial Bursitis. She had been unable to work up until the date of the hearing.

Dr. J. K. Farrish, Jr., a local physician, who examined appellee on July 23, 1956, testified that her complaint at that time was pain in the region of the ischial tuberosity of the pelvis. This bursa is located on what is known as the tail bones in a workman's language. It is bones on which human beings sit with a great majority of their weight. She related to me symptoms which were pain aggravated by sitting. After I obtained the statement from her I examined her, and the examination revealed that the bursa over the ischial tuberosity was tender and enlarged. In answer to a hypothetical question Dr. Farrish, in speaking of appellee's condition stated: 'I would say that it had been caused by the trauma, by the injury of sitting--to use a laymans term.' The Doctor also stated that pressure, more or less constant pressure, is recognized as one of the causes of bursitis, but it is possible for one individual to develop bursitis from a particular kind or degree of pressure where other individuals could experience the same kind and degree of pressure and not develop bursitis. There are two bones known as the ischial tuberosity. The ischial bone is part of the pelvic girdle and it is the bone on which human beings sit, and it is near the lower part of the pelvis. Bursitis is caused by trauma which is local injury; infection, or calcium deposits.

By agreement the testimony of Dr. J. S. Speed, selected by appellant, was introduced in the record. He examined appellee on November 20, 1956, and reported in substance: Patient's chief complaint is pain over the ischial bones, that is the buttock region on which a person sits: His examination shows some pain in the region of the ischial tuberosities probably due to the pull of the hamstring muscles; There is no distention or enlargement of the ischial bursa and no evidence of any inflammatory lesion in the soft tissues over the ischial tuberosities; The X-ray shows a very small area of calcification apparently in the ischial bursa on the right side. His diagnosis was: 'Ischial Bursitis, mild, right and left side.' He further stated: 'It is probable that this is an occupational type of disability which should clear up in a reasonable period of time without any residual permanent disability.'

Based on all the testimony presented to it the full commission found: 'That claimant's Ischial Bursitis is an occupational disease suffered as a consequence of the duties of her employment with the respondent employer herein.' This finding was affirmed on appeal to the Circuit Court. There is, we think, substantial evidence to affirm the Commission and the judgment of the Circuit Court.

The applicable law is found in § 81-1314, Ark.Stats.Supplement. Sub-section (a)(5) of the above section reads: 'The following diseases only shall be deemed occupational diseases, except as otherwise provided in section 43(11) [§ 81-1413]'. Following the above is set out in sub-section (a)(5) par. 4 the names and descriptions of a large number of occupational diseases, among which is this: 'Synovitis, Temosynovitis, or Bursitis due to an occupation involving continual or repeated pressure on the parts affected.'

It is not insisted by appellant that § 81-1413 mentioned above has any bearing on this appeal, but it is strenuously insisted that appellee is barred from receiving compensation under the evidence when considered in connection with the provisions of sub-paragraph (a)(7) of said § 81-1314, which, in so far as it relates to this case, says: 'An employer shall not be liable for any compensation for an occupational disease unless such disease shall (a) be due to the nature of an employment in which the hazards of such disease actually exists, (b) and are characteristic thereof and peculiar to the trade, occupation, process, or employment, and (c) is actually incurred in his employment * * *.' The letters (a), (b) and (c) have been inserted in the above quoted portion for clarity and convenience.

It is our understanding that appellant is not relying on the language in sub-division (a) or (c) above. At any rate we think the evidence clearly sustains the Commission's findings in those respects. Appellant does rely heavily on the language used in sub-division (b) above.

At the outset of appellant's brief this statement is made: '* * * the only question presented by this appeal is whether claimant's Ischial Bursitis is an 'occupational disease' under the provisions of the act.' Following this the burden of the argument is that the record contains no evidence to show that Ischial Bursitis is characteristic of or peculiar to the occupation in which appellee was engaged.

In the first place it is noted that, under the wording of the statute [81-1314(a)(7)], the disease need not be peculiar to the occupation, but may be peculiar to the process or employment. These last two emphasized words, we think, have reference in this case, to sitting in one position continuously for long hours and not to manufacturing shoes. It was not incumbent on appellee to show that this process or type of employment could cause Ischial Bursitis because the only medical testimony in the record is to the effect that it actually did. This, we think, made out a prima facie case in favor of appellee under § 81-1314(a)(5) par. 4. We agree with the commission that 'It is absolutely of no moment whether Ischial Bursitis is prevalent among claimant's co-workers or not * * *' If it were otherwise, then the first person to be affected would have no such evidence available. It would appear useless to burden appellee with producing evidence to show Bursitis is characteristic of and peculiar to a process which required her to sit on a stool eight hours a day in the face of undisputed evidence that such did cause her to contract the ailment.

Appellant's specific argument is that appellee should be denied recovery because she did not introduce evidence to show Ischial Bursitis is characteristic of and incidental to a process [of employment] which required her to sit on a stool or chair 8 hours a day, five days a week. When this argument is examined carefully we think it appears untenable under the law and facts of this particular case. The undisputed facts are that appellee has Ischial Bursitis, that it is caused by constant and repeated pressure on the parts affected, that the process in which she was engaged caused this very kind of pressure. The law [Ark.Stats. § 81-1314(a)(5) par. 4] conclusively presumes that Bursitis may be caused by 'continual or repeated pressure'--the exact kind of pressure to which appellee was subjected except that the pressure to which she was subjected was both continual and repeated. If that kind of pressure is not characteristic of and peculiar to the work or process in which appellee was engaged, then the statute is meaningless because otherwise the description of a process which would satisfy the statute defies the imagination. The key word which appellant seems to over look is 'hazards' in said sub-section (7). The question is not whether the disease is characteristic of and peculiar to the kind of work appellee was doing, but whether the hazard [of such disease] bore such relation. There can be no doubt here that there was a hazard or risk involved in the character of work appellee was doing because it actually did cause her ailment. No less was the hazard peculiar to a process which entailed continual and repeated pressure on the tail bone for 8 hours a day for five days a week, because such abnormal pressure on the affected parts is not incident to many other processes of employment.

If it be conceded, and we do, that the exact meaning and application of the words referred to above are not crystal clear in the context in which they are used, then we think they should be interpreted in the light most favorable to appellee. This rule has been announced many times by this court. See: Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, at page 1073, 193 S.W.2d 806, at page 807, and the cases cited therein.

We have read and considered several cases from other jurisdictions cited by appellant, but find nothing in them contrary to the conclusion we have reached. These cases are: Champion v. W. & L. E. Gurley, 299 N.Y. 406, 87 N.E.2d 430; American Maize Products Co. v. Nichiporchik,...