Cannella v. Gulf Refining Co. of Louisiana

• Decision Date: 23 April 1934
• Docket Number: 14668
• Citation: 154 So. 406
• Court: Court of Appeal of Louisiana — District of US
• Parties: CANNELLA v. GULF REFINING CO. OF LOUISIANA

154 So. 406

CANNELLA v. GULF REFINING CO. OF LOUISIANA

No. 14668

Court of Appeal of Louisiana, Orleans.

April 23, 1934

Rehearing denied June 11, 1934.

Lewis R. Graham and H. R. Cabral, both of New Orleans, for appellant.

P. M Milner, of New Orleans, for appellee.

OPINION

HIGGINS Judge.

Plaintiff seeks to recover from his employer four hundred weeks' compensation for permanent, total disability alleged to have resulted from acute lead poisoning sustained on or about July 15th, 1931, while working as a painter in the truck and automobile repair department of defendant.

Defendant denied that the plaintiff contracted "plumbism" or lead poisoning while in its employ and, in the alternative, specially pleaded that, if he did, it is a vocational disease and not an accidental injury within the meaning of the compensation statute, and further specially pleaded that plaintiff was furnished with a mask which was an adequate guard to protect him from inhaling the infinitesimal particles of lead suspended in the atmosphere and that he failed to use it.

There was judgment dismissing plaintiff's suit and he has appealed.

The record shows that the defendant owns and operates a number of trucks in connection with its business. From time to time, as these vehicles need repairs and overhauling, they are sent from various points in Mississippi, Alabama, Tennessee, and Louisiana to the plant in New Orleans. For several years plaintiff was regularly employed in the painting shop and used both a brush and a spray in the process of painting the various parts of the vehicles. A considerable volume of this work was performed. The first two coats of paint which were applied with a brush contained 23 per cent. lead. These two coats were rubbed with sandpaper or steel wool to give a proper surface for the application of the final coat of paint and thereby caused minute particles thereof to be thrown into the atmosphere. The spray from the "air pressure gun" which was used to apply the lacquer on the different parts of the trucks also caused a mist to be discharged in the air. Most of the trucks that were repainted were disassembled and the hood, fenders, headlights, etc., were sprayed under a hood which contained an exhaust fan which tended to carry off the paint which did not take effect on the part that was being sprayed. However, some of the trucks were painted on the floor without being disassembled. Due to the fact that the lacquer dried very quickly it is said that after it traveled about eighteen inches from the gun it would dry and become small dust-like or powder particles. There were three other exhaust fans in the large room where the painting was done and two doors and several windows. The evidence shows that the doors and windows were usually kept closed in order to maintain a temperature in the room of about 85 degrees, depending upon the atmospheric condition.

Plaintiff had worked regularly using both the spray and the brush in painting trucks and a few automobiles, and up to July 15, 1931, appeared to be in good health. On Saturday, July 18, 1931, he made an automobile trip to Bogalusa with his family and complained of suffering pain in the region of his navel, and being dizzy, nervous, and nauseated. Upon returning home on Sunday he was still ill and had to go to bed. The next day he courageously tried to work but was unable to do so. He then consulted a physician who diagnosed his case as lead poisoning, for which he was given the usual treatment. Unfortunately he did not respond to the treatment and appears to have grown worse. He was then examined at the employer's insurance carrier's request by two doctors who confirmed the diagnosis of lead poisoning, and they made various tests and examinations and kept him under their observation for some time. Another doctor employed by the plaintiff reached the same conclusion as the result of an independent examination.

The plaintiff's helper who worked with him in the same room for a number of years was equally exposed, but suffered no ill effects and is normal.

There is absolutely no doubt but that the plaintiff was and is suffering from lead poisoning, and we are convinced that it resulted from absorbing and ingesting lead while working in the defendant's paint shop.

Considerable testimony and argument was devoted to the question of whether or not the poisoning was due to inhaling the spray emitted from the air pressure gun or from coming in direct contact with paint when applying it with the brush; defendant went to great length to show that the lacquer sprayed with the gun contained no lead except in one instance in May, 1931, when a paint with a lead base or pigment was used. We do not consider it necessary to determine whether the plaintiff was suffering from lead poisoning as a result of coming in contact with paint that was applied with a brush, or with a spray or particles of paint which he inhaled as a result of sandpapering the surface of the priming coats in order to prepare the vehicle for the finishing coat of paint. It makes no difference if the poison was absorbed by his system through any one or all of these ways. In either event the result is just the same because the plaintiff suffered lead poisoning which was incidental to and arose out of his employment.

The serious issue in the case is whether lead poisoning is a vocational disease and, therefore, not compensable under the compensation statute, or an accidental injury within the meaning of the statute and hence compensable.

Section 2 of Act No. 20 of 1914, as amended and re-enacted by Act No. 85 of 1926 (page 111), reads as follows: "Be it further enacted, etc., That if an employee employed as hereinabove set forth in Section 1 (except an employee who shall be eliminated from the benefit of this act for the reasons hereinafter set forth in Section 28 of this act and elsewhere) receives personal injury by accident arising out of and in the course of such employment his employer shall pay compensation in the amounts and on the conditions and to the person or persons hereinafter provided."

Section 38 of Act No. 38 of 1918 (page 60), amending and re-enacting sections 38 and 39 of Act No. 20 of 1914, reads as follows: "Be it further enacted, etc., That the word "Accident,' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury. The terms "Injury' and "Personal Injuries' shall include only injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted."

The term "vocational or occupational disease" has been defined by several of the courts as follows:

Occupational disease is one wherein the cumulative effect of employee's continued absorption of deleterious substances from his environment ultimately results in manifest pathology. In occupational disease, any one exposure is inconsequential in itself, but the continual absorption is the factor which brings on the disease. In such cases, he can be held injured only when the accumulated effect of the deleterious substances manifest themselves. Associated Corporation v. State Com., 124 Cal.App. 378, 12 P.2d 1075. "Occupational disease is a diseased condition arising gradually from the character of the employee's work." Peru Plow & Wheel Co. v. Industrial Com., 311 Ill. 216, 142 N.E. 546. If the disability comes on gradually, it is not an accident but an occupational disease. Mauchline v. Insurance Fund, 279 Pa. 524, 124 A. 168. "Had appellee suffered an impairment of health as the gradual result of breathing fumes from paints, (3)5C that would be classed as an occupational disease." Sullivan Mining Co. v. Aschenbach (C. C.A.) 33 F.2d 1, 3. "In occupational diseases it is drop by drop, it is little by little, day after day for weeks and months, and finally enough is accumulated to produce symptoms." Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N.W. 485, 486, L.R.A. 1916A, 283, Ann. Cas.1916D, 689. "An occupational disease (3)5C has its inception in the occupation and develops over a long period of time from the nature of the occupation." Matthiessen, etc., Co. v. Ind. Board, 284 Ill. 378, 120 N.E. 249, 251. "If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means." United States Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 762, 33 L.Ed. 60. It will be noted that in every definition the court emphasizes the protracted and gradual development of the trouble.

The medical testimony establishes the fact that generally a person who constantly uses paint with a lead base or pigment and applies it with either a brush or a spray gradually absorbs into his body a poisonous lead substance and eventually, depending upon the idiosyncrasies of the particular individual, suffers from lead poisoning. The process of absorption is gradual and imperceptible. The symptoms slowly manifest themselves months before disability occurs. The definite symptoms are as follows:

A blue line in the gum adjacent to the teeth in both the lower and upper jaws;

Paralysis of the wrists commonly called "wrist drop";

Severe and excruciating pain in the region of the...