Casey v. Stedman Foundry & Mach. Co., 19477

• Citation: 134 Ind.App. 291,186 N.E.2d 177
• Decision Date: 29 November 1962
• Docket Number: No. 2,No. 19477,19477,2
• Parties: Elmo R. CASEY, Appellee, v. STEDMAN FOUNDRY AND MACHINE CO., Inc., Appellant
• Court: Court of Appeals of Indiana

Page 177

186 N.E.2d 177

134 Ind.App. 291

Elmo R. CASEY, Appellee, v. STEDMAN FOUNDRY AND MACHINE CO., Inc., Appellant.

No. 19477.

Appellate Court of Indiana, Division No. 2.

Nov. 29, 1962.

Rehearing Denied Dec. 19, 1962.

Transfer Denied Feb. 4, 1963.

Hartell F. Denmure, Aurora, Charles A. Lowe, Lawrenceburg, for appellant.

Paul V. Wycoff, Batesville, for appellee.

BIERLY, Judge.

This cause comes to us on appeal by a workman from an adverse decision as to the merits of his cause under the Indiana Workmen's Occupational Diseases Act.

The appellant was employed by the appellee from 1935 to September, 1956. For a short time he worked in the machine room, and the balance of the time in the foundry shaking out of casting moulds, red-hot castings, that ranged in size from about 12 by 12 to some 36 feet long.

The evidence indicates that the working conditions were less than ideal. The sand used in the moulds was treated with chemicals, apparently for purposes of cohesion. When the moulds were being stripped from the castings, a considerable quantity of dust as well as gas fumes would come up in appellant's face. Mr. Casey became ill, as a result of his illness he was forced to retire from gainful employment as of September, 1956, and is now receiving Social Security benefits, having been declared by the Social Security Department to be one hundred percent disabled.

It is appellant's contention 'that the general nature and character of the illness or disease for which compensation is sought is pulmonary emphysema and fibrosis secondary to occupation chronic bronchial infection as a result of dust exposure in connection with occupation.'

An occupational disease, within the meaning of the Occupational Diseases Act, is one which gradually develops from, and bears a direct causal connection with the conditions under which the work is performed, and which results from an exposure occasioned by and naturally incidental to a particular employment, and is not such a cause from a hazard to which workmen would have been equally exposed outside the employment, but must appear to have had its origin in a risk connected with the employment and to have flowed from this source as a rational consequence. (Our emphasis). Star Publishing Co. v. Jackson (1944), 115 Ind.App. 221, 58 N.E.2d 202. 'Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section.' § 40-2206(a), Burns' Ind.Stat., 1952 Replacement. Subsection (b) reads as follows:

'(b) A disease shall be deemed to arise out of the employment, only if there is apparent to the rational mind, upon consideration of all of the circumstances, a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.'

In a case arising in a proceedings under the Workmen's Occupational Diseases Act in Chevrolet Munie Div. of Gen. Mot. Corp. v. Hirst (1943), 113 Ind.App. 181, 188, 46 N.E.2d 281, 284, the court's interpretation of Section 6 of the act being § 40-2206, Burns' 1940 Replacement, (a) and (b), is as follows:

'As we understand this Section, it provides that ordinary diseases of life to which the general public is exposed outside of the employment shall be compensable only where such diseases follow as an incident of a disease arising out of and in the course of the employment, subject only to the requirements of subdivision (b) of said Section.' (Transfer on said cause denied March 29, 1943).

We quote also from the case of Schwitzer-Cummins Company v. Hacker (1953), 123 Ind.App. 674, 697, 112 N.E.2d 221, 230, which arose under the Workmen's Occupational Diseases Act, wherein the court said in part:

'* * * The interpretation we have herein placed upon the Act seems to us to be consonant with justice and the intent of the Legislature as expressed by the written Act, and in accord with the apparent leanings of our courts as indicated in their previous holdings. In all cases the claimant must establish that the disease of which he complains arose out of and in the course of his employment under circumstances consistent with the requirements of subdivision (b) of section 6 of the Act.' (§ 40-2206(a) and (b), Burns' Ind.Stat., 1952 Replacement).

In the foregoing case, the Appellate Court affirmed the award of the Industrial Board in favor of the appellee, holding that substances breathed in the course of employment produced the disease of bronchiectasis 'which was an incident of an occupational disease as defined in section 6 of the Occupational Diseases Act.'

This court is charged with the obligation to review the evidence presented to determine whether there exists any support justifying the findings by the Industrial Board that the illness of claimant did not arise out of and in the course of his employment when measured by the requirements and limitations as set forth in said Section 6, subdivisions (a) and (b).

The defendant called a medical witness, Russell S. Henry, M.D., who after having been duly qualified, testified in part as follows:

'Q. Well, at any rate, he has no silicosis?

'A. That's right. And I examined him and he was comfortable while I was conversing with him....