Chalmers v. Department of Labor and Industries

• Decision Date: 30 November 1967
• Docket Number: No. 39167,39167
• Citation: 434 P.2d 720,72 Wn.2d 595
• Court: Washington Supreme Court
• Parties: John Chalmers, Deceased. Eva L. CHALMERS, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES, Appellant.

Page 595

72 Wn.2d 595

434 P.2d 720

John Chalmers, Deceased.

Eva L. CHALMERS, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES, Appellant.

No. 39167.

Supreme Court of Washington, Department 2.

Nov. 30, 1967.

John J. O'Connell, Atty. Gen., John T. Krall, Asst. Atty. Gen., Olympia, Keith, Winston & Repsold, Michael J. Cronin, Spokane, for appellant.

Theodore M. Ryan, Spokane, for respondent.

DONWORTH, Judge.

October 31, 1962, 66-year-old John G. Chalmers died from bronchopneumonia, which was due to bronchogenic carcinoma (lung cancer). Until that time, he had been employed by the Dawn Mining Company repairing and patching glass-lined tanks, which were used for the storage of acids.

November 28, 1962, his widow, respondent herein, filed a claim for a widow's pension with the Department of Labor and Industries, alleging that her husband died as a result of an industrial injury which he had suffered on March 28, 1960. June 14, 1963, the supervisor entered an order denying the claim. July 10, 1963, the widow appealed to the Board of Industrial Insurance Appeals, and the Board granted the appeal on August 2, 1963. February 4, 1964, the Board issued an order remanding the claim to the Department of Labor and Industries with directions to hold the order of June 14, 1963 in abeyance pending an investigation to determine whether or not the deceased, John Chalmers, had died as the result of an occupational exposure in the course of his employment. Thereafter, on August 19, 1964, the supervisor entered an order reaffirming the order of June 14, 1963, again rejecting the claim on the ground that there was no relationship between the cancer which caused Chalmer's death and his employment with the Dawn Mining Company.

September 24, 1964, appellant again appealed to the Board of Industrial Insurance Appeals, which appeal was granted on October 16, 1964. Hearings were conducted by the Board on September 17, 1965, and proposed findings, conclusions, and an order of he hearings examiner, which were adverse to respondent, were entered. Respondent filed exceptions to the proposed decision and order, and, on December 9, 1965, the Board affirmed the decision of its trial examiner. Respondent then appealed to the Superior Court for Stevens County.

Following a hearing by the court, sitting without a jury, a decision was entered in favor of respondent, reversing the decision of the Board and allowing respondent's claim for benefits under the Workmen's Compensation Act. May 27, 1966, findings of fact and conclusions of law were entered by the trial court. This appeal is brought from the judgment for respondent.

The trial court, in its memorandum decision, outlined the pertinent facts surrounding and following decedent's injury of March 28, 1960, as follows:

It is the contention of the petitioner that the deceased, on March 28, 1960, was working with a sealing product inside a tank and was overcome by its fumes to such an extent that he fell and injured himself. * * *

Dr. M. B. Snyder was called to the mill of the Dawn Mining Company and, 'Found the deceased unconscious, his breathing was shallow and irregular, he was ice cold and his clothes thoroughly drenched from lying in cold water * * *. It was almost fatal * * *.

The workman was hospitalized until April 4, 1960, and returned to work April 7, 1960. ¹ The doctor saw him several times after the accident and on March 28, 1961, a significant development occurred in the opinion of the doctor.

A smart burning rash began to appear on the hands and wrist of the workman, and became worse after using the sealing product. 'Skin on the hand and wrist acutely inflamed and thickened with a dry, angry appearance dermatitis, considered to be allergic dermatitis.' The doctor saw him again on December 10, 1961, for a flareup of this same allergy involving his face and testified, 'That in the absence of any other history from this man and no previous episode of this allergy, we assumed these recurring episodes were the result of the original condition which I consider was due to his contact with Epoxylite.'

One of the company employees testified also as to the allergy. He testified that the deceased was no longer required to use the product. 'Because he showed up with an allergy to it. We knew he was allergic to it.'

Prior to the accident there had been a series of x-rays which were negative for three of four years. Dr. Snyder had been the attending physician of deceased for several years prior to March 28, 1960.

On or about April, 1962, the x-ray showed a large shadow of which the doctors were suspicious and after several months it was evident that it was cancer. The workman died October 31, 1962, of Bronchopneumonia due to Bronchogenic carcinoma at the Veterans Hospital in Spokane.

The doctor (Snyder) gave this opinion as to the cause of death. 'I think this man died of carcinoma of the lungs, as a result of his occupational employment and exposure to the irritating hazardous fumes, over a period of time in his work at Dawn Mining Company, climaxed probably by an almost fatal exposure to them on the night, or the day, or the late evening of March 28, 1960, the same fumes.'

However, Dr. Alexander P. Greer, a specialist from Spokane, testified on the basis of facts submitted to him by the Department of Labor and Industries (he had never examined decedent) that the substances which were used by Chalmers on March 28, 1960, were not carcinogenic (cancer causing), and that the exposure to the fumes of such substances would not cause cancer.

The proposed decision and order of the hearing examiner, after outlining the evidence, contains the following language:

This examiner was given the choice of accepting the testimony of a non-specialist, Dr. Snyder, or of a specialist, Dr. Greer, and all other things being equal, chooses to accept the opinion of Dr. Greer that the known substances that the deceased was exposed to while employed by the Dawn Mining Company did not, on a more than likely basis, cause the development of his chest cancer from which he died. The petitioner has not established that Epoxylite is a cancer producing substance If he was exposed to it on March 28, 1960. The evidence would indicate that the one massive exposure which Dr. Snyder assumes to be Epoxylite was not that substance but some other unnamed product, which might or might not be carcinogenic. On that ground the petitioner's claim must fail.

In its memorandum decision, the trial court stated:

Dr. Snyder was the attending physician in this case. He knew that prior to the injury that the x-rays of his chest were negative. He was in frequent attendance on the decased and connected the cancer with the fumes.

As was said in Benedict vs. Department of Labor and Industries, 63 (Wash.2d) (12) 15 (385 P.2d 380), 'The answer is to be found in the field of expert testimony.'

Like in the Benedict case, Dr. Greer called by the Department never saw the workman and stated opinions based entirely on hypothetical questions. This court cannot understand why the Examiner and the Board accepted his testimony and rejected Dr. Snyder's.

It is settled in this state that, in this type of cases, special consideration should be given to the opinion of the attending physician. Groff v. Department of Labor & Industries, 65 Wash.2d 35, 395 P.2d 633 (1964); Spalding v. Department of Labor & Industries, 29 Wash.2d 115, 186 P.2d 76 (1947); Seattle-Tacoma Shipbuilding Co. v. Department of Labor & Industries, 26 Wash.2d 233, 173 P.2d 786 (1946).

However, the testimony of the treating physician is not conclusive. As we noted in the Groff case, supra 65 Wash.2d at 45, 395 P.2d at 639:

We are not saying that the trier of the facts should believe the testimony of the treating physician; the trier of the facts determines whom it will believe; * * *.

In the present case, the treating physician, Dr. Snyder, based his opinion largely, if not entirely, upon his information that the compound used by decedent when he suffered his near fatal exposure on March 28, 1960, was a compound known as Epoxylite. On cross-examination, Dr. Snyder testified that:

Q. Doctor, getting back to the fumes you rely on in your opinion, what again are the fumes you are talking about? A. The fumes Mr. Chalmers worked with in his work in the vats. Q. Which ones are they? A. The only thing I know is what I have been told, that they are a form of Epoxylite, or an Epoxylite catalyst, that contains, among others, methylisobutyl, ketonebutyl alcohol, b-u-t-y-l alcohol, and zynene (phonetic), x-y-n-e-n-e. Q. You went to some chemical book and looked up the definition of Epoxylite? A. Right. ²

Dr. Snyder further testified that:

Q. You place some emphasis on the fact that he developed dermatitis on some occasions from the Epoxylite? A. Right. Q. And you feel that because a person is allergic to a particular chemical substance, that such a substance is a causative agent in cancer? A. I wouldn't say it like that. I would say that if the exposure of the substance to the skin would cause that much reaction, it would cause a much greater reaction for the mucous membranes of the respiratory system. Q. We have to know, too, what degree he was inhaling the fumes, would we not, and how much, and what degree of exposure? A. I think that is a fair statement. Over his period of employment since March 28, 1960, he inhaled enough that night that he almost died. Q. That fact is important in your opinion here? A. Extremely important. Q. Were it not for what you call a severe, almost fatal exposure, if it were not for that, would your opinion be different in this case, do you think, doctor? A. If he hadn't had that exposure he might be alive today, that exposure of March 28, 1960. It is really important. I think it is a link in the chain of exposure over a period of time.

Lyle Strong, an employee of Dawn Mining Company, testified that, to his knowledge, the company did not begin using...