Campbell v. Heinrich Savelberg, Inc., 405-79

CourtUnited States State Supreme Court of Vermont
Citation421 A.2d 1291,139 Vt. 31
Docket NumberNo. 405-79,405-79
PartiesClyde CAMPBELL v. HEINRICH SAVELBERG, INC. and American Fidelity Company.
Decision Date09 September 1980

Gary R. Brown, Woodstock, for plaintiff.

Theriault & Joslin, Montpelier, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

This is a claim by a carpenter against his employer, Heinrich Savelberg, Inc., for benefits under our Workmen's Compensation Act, 21 V.S.A. ch. 9. Because the parties were unable to agree on compensation, claimant filed a "Notice and Application for Hearing" with the Commissioner of Labor and Industry. Id. § 663. This document alleged that claimant had suffered aggravation of preexisting pulmonary disease and a myocardial infarction from exposure to heavy varnish and paint fumes in a poorly ventilated workplace. After a hearing, the Commissioner issued findings, conclusions and an order which denied an award. Id. § 664. Claimant filed a timely appeal to the superior court, id. § 670, and the Commissioner certified three questions to the court, id. § 671. Because the second question deals with the extent of disability, an issue not contested on appeal, only questions one and three are relevant here:

1. Is the claimant's myocardial infarction a personal injury by accident under the Workmen's Compensation Act?

3. Was there aggravation of the claimant's pulmonary disease due to exertion and stress resulting from work in a poorly ventilated area in the presence of heavy varnish and paint fumes?

Both at the outset of the case and at the close of claimant's evidence, the employer moved to strike question # 3 essentially because it did not state a claim of personal injury by accident under the Workmen's Compensation Act. For the same reason, the employer also made a motion for a directed verdict on question # 1 at the close of the claimant's case. The court denied these motions, and allowed the case to go to the jury, id. § 670, which, by interrogatories, answered both questions in the affirmative. This result was certified to the Commissioner by order of the superior court, id. § 671, and the employer promptly appealed to this Court, id. § 672.

The appeal challenges the denial of employer's motions. In substance, the employer claims that the medical testimony was not sufficiently certain to support a jury finding that the fumes caused the alleged injuries; that neither the aggravation of claimant's bronchitis nor the myocardial infarction raise a legal claim for compensation because neither constitute a "personal injury by accident" within the meaning of 21 V.S.A. § 618; and that the aggravation of claimant's chronic bronchitis is an occupational disease, not a personal injury by accident, and is therefore compensable under the Occupational Disease Law, 21 V.S.A. ch. 11, but not under the Workmen's Compensation Act.

The evidence showed that in April and May of 1977 claimant was working for his employer on the construction of a large house, which was behind schedule. To speed up the job, the painters began work while some areas of the house were still being completed by the carpenters, and some of the furniture was moved into the house while this work was going on. Since the usual practice was for the carpenters to complete their work before the painters arrived, this particular job created an unusual situation in which the carpenters were exposed to fumes from paint and varnish. Furthermore, because it was necessary to close the windows to protect the furniture and fresh paint from dust, the lack of ventilation created an unusually high concentration of fumes in the air.

According to the claimant's experts, claimant had arteriosclerosis and mild to moderate chronic bronchitis prior to his exposure to these fumes. Although the evidence is somewhat conflicting, it appears that claimant was exposed to the fumes for approximately four to six weeks. By the last week of this exposure, claimant's condition had deteriorated to the point where his severe shortness of breath and increased production of sputum were consistent with a change from chronic to acute bronchitis. On May 10 and 11, claimant worked in a closed garage over open paint cans and adjacent to a hallway which was being freshly varnished. On these days claimant's condition was especially bad, and at times he had to step outside to get fresh air. At about three o'clock on the afternoon of the eleventh, claimant began experiencing severe chest pains. Although he was able to complete the day's work and to get to his doctor's office, he then suffered cardiac arrest.

The medical testimony of two doctors was that, to a reasonable degree of medical certainty, the fumes caused the change from chronic to acute bronchitis. Both doctors further testified that the diminished oxygen supply caused by the aggravated bronchial condition probably resulted in the death of part of the heart muscle, and the myocardial infarction. This testimony meets the legal standard of reasonable probability required of expert opinions, see State v. Bishop, 128 Vt. 221, 232, 260 A.2d 393, 400 (1969) (Holden, C. J., concurring); Howley v. Kantor, 105 Vt. 128, 133, 163 A. 628, 631 (1933), and therefore the employer's objections are not well taken on this issue.

The principal question raised by the employer is whether either certified question states a claim, under the evidence as developed, of personal injury by accident within the meaning of the Workmen's Compensation Act. See 21 V.S.A. § 618. For the purposes of the Act, an accident is " 'an unlooked for mishap or an untoward event which is not expected or designed.' " Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 157, 177 A. 313, 316 (1935) (quoting Fenton v. Thorley & Co. (1903) A.C. 443, 448); accord, Masterson v. Rutland Hospital, Inc., 129 Vt. 91, 92, 271 A.2d 848, 849 (1970). Certainly, it cannot be said that the aggravation of claimant's bronchitis or the myocardial infarction was either expected or designed. Clover, Clayton & Co. v. Hughes, (1910) A.C. 242, 245-46; see Laird v. State Highway Department, 112 Vt. 67, 86, 20 A.2d 555, 564-65 (1941). Furthermore, while it is common to think of an...

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8 cases
  • Cyr v. Mcdermott's Inc
    • United States
    • Vermont Supreme Court
    • March 5, 2010
    ...outcome by barring lawful recovery for those workers whose injuries manifest outside the job. Cf., e.g., Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 34, 421 A.2d 1291, 1293 (1980) (carpenter's heart attack caused by several weeks of exposure to fumes while at work). To uphold the legi......
  • Pacher v. Fairdale Farms
    • United States
    • Vermont Supreme Court
    • June 2, 1997
    ...by drinking alcohol where sawmill injury aggravated or accelerated claimant's preexisting alcoholism); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36, 421 A.2d 1291, 1294 (1980) (employer liable where exposure to fumes aggravated claimant's preexisting mild to moderate bronchitis t......
  • Everett v. Town of Bristol, 93-620
    • United States
    • Vermont Supreme Court
    • January 30, 1996
    ...medical certainty.' " Jackson v. True Temper Corp., 151 Vt. 592, 596, 563 A.2d 621, 623 (1989) (quoting Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 34, 421 A.2d 1291, 1293 (1980)). Thus, speculative expert testimony is irrelevant and is not admissible. Turgeon v. Schneider, 150 Vt. 26......
  • Bedini v. Frost, 94-624
    • United States
    • Vermont Supreme Court
    • March 15, 1996
    ..."the aggravation or acceleration of a pre-existing condition can constitute a personal injury by accident under the Act." 139 Vt. 31, 35-36, 421 A.2d 1291, 1294 (1980). Mental injury claimants with preexisting conditions can still receive compensation, but they, like all mental injury claim......
  • Request a trial to view additional results

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