Burt v. John Deere Waterloo Tractor Works

• Decision Date: 13 December 1955
• Docket Number: No. 48763,48763
• Citation: 247 Iowa 691,73 N.W.2d 732
• Parties: Russell BURT, Claimant, Appellee, v. JOHN DEERE WATERLOO TRACTOR WORKS of Deere Mfg. Co., Employer, Appellant.
• Court: Iowa Supreme Court

Page 732

73 N.W.2d 732

247 Iowa 691

Russell BURT, Claimant, Appellee, v. JOHN DEERE WATERLOO TRACTOR WORKS of Deere Mfg. Co., Employer, Appellant.

No. 48763.

Supreme Court of Iowa.

Dec. 13, 1955.

Rehearing Denied March 9, 1956.

Pike, Sias, Butler & Hoxie, Waterloo, for appellant.

William W. Parker, Waterloo, for appellee.

LARSON, Justice.

Claimant Russell Burt, a married man with three children, was employed by defendant at the time of the alleged injury to his lungs. Although five errors are assigned under three divisions there is essentially but one question presented: Is there any substantial evidence that claimant's lung condition arose out of and in the course of his employment?

His employment for the last 6 1/2 years at 8 hours a day as a 'spot-blaster' is conceded. There is no contradiction of his testimony that in 1953 the first symptoms of illness he recognized were a 'tired and aching feeling' and he could cough up particles of dust; that on or about June 18, 1953, he reported to Dr. Thornton, who took his temperature and gave him a shot of penicillin, and a couple of days later sent him to Dr. Kitsell.

Claimant also said: 'Prior to that time, on one or more occasions due to the heat I suffered unconsciousness or semiuncon-sciousness that forced me to stop working for awhile. I would go down to First Aid and the nurse would have me lay on the table for awhile.' This illness occurred several times.

Finally he was told 'to take it easy' and he didn't work for a couple of days. Then he went back for half a day, worked until about 11:00 o'clock, felt bad, and was sent to St. Francis Hospital where X-rays were taken by Dr. Kitsell, his lungs were washed out, and 'a gland or something' was taken from his thigh.

He was at St. Francis about two weeks, then went home a week or two, and was examined by Drs. Thornton and Miller. He was sent to Oakdale (State Sanitarium) where he stayed two weeks and then to Iowa City (University Hospital) another two weeks, was X-rayed and another gland taken out of his neck. He has not worked since June 18 or 19, 1953. He thinks Dr. Thornton or Dr. Miller said he had 'a touch of pneumonia' and that they might also have said he had bronchitis. Claimant said he told both doctors he had been working with a filtered air supply through a mask. He further explained: 'I came pretty near to passing out cold several times on account of the heat. It is a hot job and on those times I was wringing wet with sweat.'

He testified also on redirect examination: 'At the time I was employed at the Deere Tractor Works I was feeling pretty good. They examined me and the doctor passed me for work. I at times reported the unpleasant working conditions to the foreman * * *. The millwright would fix it when he had time but he was in no particular hurry about it. * * * Dr. Miller and Dr. Thornton told me they didn't know what my ailment was.'

Neither Drs. Thornton, Kitsell nor Miller, apparently company doctors, were called as witnesses. But Dr. Spear, Superintendent, Medical Director of Oakdale Sanitarium, testified that Dr. Miller in his case history said: 'Boeck's sarcoid, miliary tuberculosis, histoplasmosis, all considered.'

Dr. Spear's own diagnosis, based on record of staff conferences and X-rays, was 'possible silicosis, possible Boeck's sarcoid and no clinical tuberculosis.'

Two employees besides claimant, one for him and the other as a witness for the company, described the conditions under which a 'spot-blaster' worked.

Mr. Morehead, also a 'spot-blaster,' explained it is a job in which small steel pellets are shot from an air hose under pressure in order to clean castings after they are removed from the mold. 'I wore, while on the job, a heavy jacket and a mask and helmet to keep the dust out. After I had been in the room with the mask and helmet on for awhile, the air became real hot. The dust sometimes did get under the mask and inside the helmet, and in the morning after I awakened I could cough up black phlegm, which I believe was caused by the same dust I breathed while at work. I suffered from bronchitis about twice a year while working there and the year that I wasn't working there I didn't have bronchitis and only one cold; and that while working there, after a considerable length of time, I suffered sort of a weakened condition.' He also told of another worker using the same equipment on the same job who became ill and went to Oakdale.

Claimant himself testified he worked in the 'Pangborn' cabinet and 'wore a heavy jacket, apron, special gloves and a helmet with a screen protected glass in the front of it. The helmet is made of rubber and inside has a section that is drawn up tightly around the neck. After you go inside the helmet is hooked up to compressed air. The room * * * is dusty because the dirt from the castings is removed by shooting against the castings buckshot from a compressed air hose. Some of the dust comes up underneath the mask. * * * the air in the Pangborn becomes hot. * * * The air hose broke at times and that kicked up more dust than usual. When it broke, I would practically run; I would get out as fast as I could. * * * They checked the air and the air filter charcoal, but not often enough because there was still a bad odor from the rust. The air comes through a pipe line from some source. * * * I complained to Mr. Rehder and the foreman about the hot air coming through my helmet. * * * A fellow by the name of Joe Scott worked on this job about three years which was the longest that anyone else ever worked on the job.'

The 'Pangborn' is described as a 'blast cabinet' about 25 feet long and 8 feet wide. The area where claimant worked was 'probably six feet square, with a ceiling height of 10 or 12 feet,' according to the company witness.

This witness was the company safety director. His description of the mechanics of the working conditions does not vary greatly from that of the other two witnesses. He contradicts, however, that the equipment had not been operating properly 'except once in awhile.' He also said: 'I have not personally tested the air helmet under actual working conditions.' The clear inference is that the equipment was defective at least 'once in awhile,' and so his testimony in that regard was of little value. The same is true of his testimony that the compressed air 'could have absolutely no sand or dirt particles in it' and that even if the activated charcoal were left in too long the 'spot-blaster' would still get 'a normal supply of pure compressed air.'

We conclude there was substantial evidence of defective necessary protective equipment, and that it was not strongly denied. Therefore the only substantial contention of defendant concerns the nature of claimant's ailment and as to whether it was shown to have arisen out of his employment.

It is true claimant offered only the one medical witness, Dr. Spear, and that two doctors from the University Hospital at Iowa City testified for the defendant-employer. Dr. O'Bannon, a young intern of not too much experience with such cases, had claimant under his daily observation and supervision eighteen days. His superior officer, Dr. Hardin, concurred in Dr. O'Bannon's diagnosis of claimant's condition, though his diagnosis like Dr. Spear's was not from personal examination but from X-rays, laboratory procedures, and the case history. He said: 'I personally examined the X-rays, I have personally talked with him and personally have read his case history.' The diagnosis of these doctors was Boeck's sarcoid, which Dr. Hardin said 'is a chronic disease; it is along term infection. It would be of eighteen to thirty-six months duration. There is no particular cure other than perhaps length of time and sufficient food and rest.' (Emphasis supplied). He further said: 'No cause of Boeck's sarcoid is known. In a very rough sort of way it is analogous to the common cold--much more prolonged and unpleasant.' He discounted the other suggested ailments of tuberculosis or silicosis. In that judgment he agreed with Dr. Spear that there was no tuberculosis, but it is evident his reason for eliminating silicosis was questionable, for he said: 'The case history did not indicate silicosis on such short exposure' and 'I was not aware at the time Mr. Burt was here that he had been on a filtered air job since 1948, * * *.' This would not have changed his diagnosis but he said: 'If he has worked in a dusty atmosphere it is possible that he has silica in his lungs but whether or not the entire picture as seen on X-rays could be attributed to that * * * could conceivably be explained if there was a very large concentration of dust. That is, anyone exposed to dust will breathe it in; how much is deposited depends upon the amount he breathes it.' His opinion however was: 'Since the cause of Boeck's sarcoid is unknown, I can't say that it could have been caused as a result of his exposure to dust in his employment.'

Nevertheless, on recross-examination he admitted: 'While we do not know the exact cause of Boeck's sarcoid, it is a general principle that any patient that is weakened to anything else is more apt to fall victim to another disease.'

Furthermore, on redirect examination Dr. Hardin stated: 'In the medical profession it is thought that a general weakened condition, no matter what the cause, whether lack of sleep, occupation, excessive drinking, overwork, etc., makes the human body more susceptible to infection or disease.' (Emphasis supplied.)

No evidence of any other cause but occupational difficulties appears. The deputy industrial commissioner, the commissioner, and the trial court felt that sufficient evidence of defective equipment, unwholesome working conditions, and the improper protection from the known hazards, resulted in the general weakened condition of claimant whereby he became temporarily disabled by Boeck's sarcoid and granted compensation of '28.00 per week for a...