Bybee v. Idaho Equity Exchange

• Citation: 65 P.2d 730,57 Idaho 396
• Decision Date: 17 February 1937
• Docket Number: 6358
• Parties: C. S. BYBEE, Respondent, v. IDAHO EQUITY EXCHANGE and STATE INSURANCE FUND, Appellants
• Court: Idaho Supreme Court

65 P.2d 730

57 Idaho 396

C. S. BYBEE, Respondent, v. IDAHO EQUITY EXCHANGE and STATE INSURANCE FUND, Appellants

No. 6358

Supreme Court of Idaho

February 17, 1937

WORKMEN'S COMPENSATION ACT-FINDINGS OF INDUSTRIAL ACCIDENT BOARD-REVIEW-EVIDENCE.

1. Positive medical testimony held to show that disability of claimant who, according to board's findings, was suffering from bronchiectasis, was caused by his work in spraying growing peas with sulphur, and hence there was no substantial evidence supporting board's contrary findings and decision denying compensation.

2. Board's findings supported by competent evidence are conclusive on appeal to courts.

3. Courts may set aside board's findings and decision if clearly unsupported as matter of law.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, District Judge.

Judgment of the district court, reversing order of Industrial Accident Board, denying claimant compensation. Affirmed.

Affirmed. Costs to respondent.

Carroll F. Zapp, for Appellants.

The findings of the Industrial Accident Board are conclusive and will not be disturbed if there is sufficient competent evidence to support them; neither will the findings of the board on conflicting evidence be disturbed on appeal where there is competent evidence to support them. (Sec. 43-1408 I. C. A.; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Reader v. Milwaukee Lumber Co., 47 Idaho 380, 275 P. 1114; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203.)

Elam &amp Burke, for Respondent.

Findings of the Industrial Accident Board must be supported by competent and substantial evidence. (Beaver v. Morrison Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A. L. R 1399; In re Hillhouse Estate, 46 Idaho 730, 271 P. 459; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087.)

In cases arising under Workmen's Compensation Act it is only necessary for claimant to establish his right to compensation by a preponderance of the evidence. (Leach v. Grangeville Highway Dist., 55 Idaho 307, 41 P.2d 618; Webb v. Gem State Oil Co., 56 Idaho 465, 55 P.2d 1302; Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910; Riley v. Boise City, 54 Idaho 335, 31 P.2d 968.)

BUDGE, J. Ailshie and Givens, JJ., concur. Morgan, C. J., and Holden, J., concur in the conclusion.

OPINION

BUDGE, J.

This appeal is from a judgment of the district court reversing the findings of fact, rulings of law and award of the Industrial Accident Board wherein compensation was denied claimant C. S. Bybee, respondent herein.

Respondent was engaged in sulphuring peas for appellant Idaho Equity Exchange, that is the spraying or dusting with powdered sulphur fields of growing peas by means of a hand operated blower machine carried by respondent. Respondent was so engaged on the average of nine and one-half hours a day for twenty-seven and one-half days between May 20, 1934, and June 17, 1934, working in a cloud of sulphur dust 80 to 100 per cent pure, inhaling quantities of the dust and usually his person, clothing, face and hands were thickly covered with the dust. While so engaged respondent started experiencing a tightening sensation in his chest, started coughing and would cough hard and throw up phlegm. While so engaged he started losing weight, between the middle of June and July 20th, 1934, dropping from 165 pounds to 129 pounds. Respondent was unable to continue his work during the month of July and August, 1934, and has been totally disabled since July, 1934. Prior to the sulphuring of peas respondent had been in good health.

A claim for compensation was made, appellants denied liability, and a hearing was had before the Industrial Accident Board, the board finding that respondent was suffering from bronchiectasis, not caused by nor the result of breathing sulphur dust, and that respondent did not sustain a personal injury by accident arising out of or in the course of his employment. The board ordered that claimant take nothing and that his claim for compensation be denied, whereupon an appeal was taken to the district court and the district court made findings of fact and conclusions of law reversing the findings of the board and judgment was entered remanding the cause to the Industrial Accident Board with instructions to enter an award in favor of respondent and this appeal was then taken.

The assignments of error raise but one question, that of whether respondent's disability was due to his inhalation and ingestion of sulphur dust while engaged in sulphuring peas for appellant, Idaho Equity Exchange, the Industrial Accident Board finding that it was not and the district court finding to the contrary. It is appellants' contention that the district court was in error as the findings of the Industrial Accident Board were supported by substantial and competent evidence, and that where there is a conflict in the evidence the findings of the board are conclusive. A determination of the point involved must be derived in the main from the expert testimony of the medical witnesses who testified as to respondent's condition or illness and its cause.

The findings of the Industrial Accident Board, based upon competent and substantial evidence, appear to have largely eliminated the testimony of Dr. West, inasmuch as the board found that respondent was afflicted with diseases other than tuberculosis, Dr. West's diagnosis, during the period of time involved in this action, the board finding as follows:

"That on or about the 12th or 13th day of July, 1934, the claimant called upon a physician, which physician saw him three times in the month of July. . . .

"That at the time he visited said physician in the middle of July, the claimant was suffering with acute bronchial pneumonia. . . .

"That since the middle of August, 1934, and until the holidays of that year, . . . . he was being treated by another physician; that the matter which the claimant coughed up at that time and which he described as 'sulphur, just like scabs' were tube casts such as form in bronchiectasis; that at the time he coughed up said tube casts he was suffering with bronchiectasis. . . .

"That about the 29th day of February, 1935, the claimant called upon the county physician of Canyon County; that said physician had an analysis made of the sputum; that the sputum at that time showed no tuberculosis but showed a streptococcic infection. . . .

". . . . that the claimant now is, and ever since the 20th day of August, has been totally disabled for work; that he now has an irritation of the lungs, especially the left, and a chronic bronchitis; that said condition is the result of an infectious process. . . ." (Our italics.)

From the testimony of Dr. West it was his opinion from an examination of X-ray pictures that appellant was suffering at all times with tuberculosis, which diagnosis the Industrial Accident Board did not accept, and which would have the effect of eliminating the testimony of Dr. West to the effect that tuberculosis would not be caused by or affected by the inhalation of sulphur. In addition Dr. West testified:

"I don't know anything about the damage of sulphur to the lungs. . . .

"Q. If the bronchi or lungs were not normal and tuberculosis or bronchiectasis or bronchitis existed, would the inhalation of sulphur aggravate tuberculosis or bronchiectasis or bronchitis, in your opinion?

"A. It is possible it might. There is not the normal defense and the normal resistance."

There is no testimony on the part of Dr. West that acute bronchial pneumonia, bronchiectasis, or chronic bronchitis as a result of an infectious process, the ailments with which respondent was suffering according to the findings of the board, could not have been caused by the breathing of sulphur in the work performed by respondent. Rather his testimony is that "It is possible" that the existing bronchiectasis or bronchitis might be aggravated by the inhalation of sulphur.

The testimony of Dr. Belknap, a physician and surgeon who first examined respondent, "the latter part of July or August 1934" on three occasions, stated: "He had bronchial pneumonia at that time." The more pertinent portion of Dr. Belknap's testimony is as follows:

"Q. Bearing in mind the history of this case as given to you by Mr. Bybee and particularly the amount of time he spent dusting peas with sulphur, in your opinion was there any connection between his condition when he reported to you in July or August, 1934, and this work he had been doing dusting peas?

"A. I thought that was more a coincident.

"Q. And there was no direct connection between them?

"A. Not from his acute pneumonia. . . .

"A. Sulphur if inhaled into the lungs would cause a slight irritation, like any foreign matter. Make a person cough perhaps. . . .

"Q. Would the presence of sulphur in the lung have any damaging in normal lungs, or normal bronchial tubes?

"A. If you had a lot of strong sulphur, it would irritate the lungs, yes. . . .

"A. Put a person into a room with a lot of sulphur and it could cause coughing, and the bronchial tubes, since there is an inclination for them to eliminate it, the coughing would throw it off and afterwards there would be an irritation of the lung tissue.

"Q. Is there any possibility of sulphur causing bronchitis?

"A. If a...