Enyard v. Consolidated Underwriters

• Decision Date: 16 March 1965
• Docket Number: Nos. 31463-464,s. 31463-464
• Parties: Alfred ENYARD, Respondent, v. CONSOLIDATED UNDERWRITERS, Appellant, Scullin Steel Company and American Automobile Insurance Company, Respondents. Alfred ENYARD, Respondent, v. SCULLIN STEEL COMPANY, Appellant, Consolidated Underwriters and American Automobile Insurance Company, Respondents.
• Court: Missouri Court of Appeals

Page 417

390 S.W.2d 417

Alfred ENYARD, Respondent, v. CONSOLIDATED UNDERWRITERS, Appellant,

Scullin Steel Company and American Automobile Insurance

Company, Respondents.

Alfred ENYARD, Respondent, v. SCULLIN STEEL COMPANY, Appellant,

Consolidated Underwriters and American Automobile Insurance

Company, Respondents.

Nos. 31463-464.

St. Louis Court of Appeals, Missouri.

March 16, 1965.

Motion for Rehearing or to Transfer to Supreme Court Denied

April 12, 1965.

Application to Transfer Denied June 14, 1965.

Max Librach and Milton R. Fox, St. Louis, for Alfred Enyard.

John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for Scullin Steel Co. and American Auto Ins. Co.

Charles F. Luke, Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for Consolidated Underwriters.

RUDDY, Presiding Judge.

This is a proceeding under the Workmen's Compensation Act and involves a claim by Alfred Enyard against Scullin Steel Company, his former employer; American Automobile Insurance Company and Consolidated Underwriters, insurors; for compensation on account of an occupational disease, namely, silicosis. The Referee found claimant totally and permanently disabled and made an award in his favor. The award was against Scullin Steel Company and Consolidated Underwriters as the employer's insuror and in favor of American Automobile Insurance Company. The Industrial Commission affirmed the award of the Referee and on appeal to the Circuit Court of the City of St. Louis the award of the Industrial Commission was affirmed. The appeal from the judgment of the Circuit Court to this court was taken by the Scullin Steel Company, employer, and the Consolidated Underwriters, insuror. We shall refer to Alfred Enyard as claimant, to Scullin Steel Company as Scullin, to Consolidated Underwriters as Consolidated and to American Automobile Insurance Company as American.

The original claim for compensation was filed August 4, 1960. In it claimant alleged that while employed by Scullin he sustained an occupational disease, silicosis. He alleged the name of the insuror to be American Automobile Insurance Company; that the date of disability was April 1960; and that he was disabled 'since April 1960.' On January 24, 1961, claimant filed an amended claim for compensation and in it he alleged that the insurors of Scullin were (1) American Automobile Insurance Company; and (2) Consolidated Underwriters. He reiterated the allegations contained in his original claim concerning disability and the date thereof and again stated that disability existed 'since April 1960.'

The evidence at the hearing disclosed that claimant worked for Scullin from May 1936, until January 1943, as a sand blaster of castings. He first worked in a small enclosure where there was a great quantity of dust that resulted from the sand blasting operation. He wore a canvas hood over his head equipped with a window and the hood extended to his waist where it was fastened around his body. He also wore a respirator which claimant said 'brought air from the outside somewhere.' It was this outside air he breathed. However, claimant testified that he had a lot of trouble keeping the respirator in place and as a result he inhaled sand dust. At a later stage of his employment he worked outside of this enclosure without a hood but with the respirator. Claimant said he worked on a farm in Randolph County for 20 years prior to working for Scullin and that during the entire time he worked for Scullin he did sand blasting. Scullin and the insurors introduced a record kept by Scullin that showed claimant had previously worked as a sand blaster for three years at Advance Rumley Company, LaPorte, Indiana. However, claimant testified that the record of Scullin was incorrect and that he did not tell anyone at Scullin that he worked as a sand blaster at Advance Rumley Company for 3 years. He said that he did work for Advance Rumley Company for 3 days in 1918 as a laborer and that he did no sand blasting until he came to Scullin.

After leaving his employment at Scullin, on January 2nd, 1943, claimant engaged in the coal hauling business for about two years. Thereafter, he worked in a tannery in California for about 2 years and left there and worked for a tannery in Milwaukee, Wisconsin, for about one year. From there he went to Detroit, Michigan, where he worked for a private family as a domestic butler and chauffeur for a little more than three years. His employers went abroad and he got a job in Plymouth, Michigan, doing greasing and undercoating in a garage for approximately 3 years. He then returned to St. Louis and worked as a chauffeur and butler for 2 1/2 years. Thereafter, he was unemployed for more than a year and then obtained employment with the Millstone Construction Company as a laborer for about 4 years. His last employment with them was in April of 1960. None of his employment after he left Scullin in January of 1943, exposed him to a dust hazard. When he left Scullin his health was good, although he said he had shortness of breath at that time but he did not know that he had sand (silicosis.) He testified that his health was good, except for the shortness of breath, during all of his employment, after he left Scullin. However, he did experience spells of coughing and vomiting periodically but lost no time from work in any of his employments. He worked until April of 1960 when he became disabled. During his employment subsequent to that with Scullin the shortness of breath, coughing spells and vomiting kept getting worse until in April of 1960, while employed by the Millstone Construction Company, he found that he was unable to keep up with the other laborers, stating, 'I got to where my breath got to where I couldn't keep up with the other fellows. Got short of breath so I had to be off. I couldn't work you know, keep up with the other men.'

Prior to this time he said he never went to a doctor and did not require medical treatment. After leaving his employment, in April of 1960, with Millstone Construction Company, claimant went to a Dr. Dugas to see what was wrong with him. Dr. Dugas then examined him and sent him to Dr. Timpton for x-rays. Dr. Timpton was a radiologist in the City of St. Louis. It was then claimant first learned that he had 'sand' in his lungs. This was in April of 1960. By the term sand in his lungs claimant meant silicosis.

Dr. Israel Jerome Flance, a medical witness for claimant, who specialized in internal medicine with a sub-speciality of pulmonary diseases, examined plaintiff for the first time on June 12, 1961. His examination consisted of a history, physical examination, x-rays of the chest and certain laboratory studies. He again examined claimant on the 16th of June, 1961. His examination showed shortness of breath, percussional resonant breath sounds and bronchiectasis in both upper lobes with a peculiar grinding sound heard on inspiration and expiration of the left hemathorax. He testified that, based on his physical examination, laboratory data and x-ray pictures, in his opinion claimant has silicosis, stating that it was 'very advanced third stage lung silicosis.' He gave it as his opinion that the claimant was permanently and totally disabled.

In answer to a question that described the length of time and the conditions under which claimant worked as a sandblaster for Scullin, he testified, that in his opinion the silicosis was contracted as a result of claimant's work at Scullin.

In cross examination when he was asked to assume as an additional fact that the claimant had worked as a sandblaster at Advance Rumley Company prior to his work at Scullin, he said that it would be very difficult to say at which place claimant contracted the disease unless he knew the nature of claimant's occupation in each plant. Dr. Flance further gave it as his opinion, after assuming that claimant was not exposed to the inhalation of silica dust after he left Scullin, namely, January 2, 1943, that claimant contracted the disease during the course of his occupation as a sandblaster at Scullin.

In describing the characteristics of silicosis with respect to its onset, he said that 'sandblasters are notorious for getting tremendous concentration of dust in small particle size more than in the toxic similar sand exposure in steel making industries.' The dust, he said, is often insidious, in fact it might slowly build up in individuals in the development of symptoms. Individuals with first stage silicosis will often have no symptoms whatsoever. Individuals with second stage silicosis, which is characterized by nodulation in both lungs, may be asymptomatic, although some individuals may have symptoms. Individuals in the third stage are the ones with the most severe symptoms. He said that in some patients the disease progresses very rapidly and in others very slowly.

Claimant testified that he never communicated with Scullin in any manner after he left his employment in 1943. He admitted that the first information the company received that he claimed to have acquired silicosis as a result of his work was when he filed his claim on August 4, 1960.

Dr. Flance further testified that nothing medically could have been done by Scullin if it had been notified of claimant's silicosis in April 1960 when claimant first learned that he had silicosis.

The following facts were admitted: During the period of claimant's employment, from May 25, 1936, to Jan. 2, 1943, Scullin was an employer operating under the provisions of the Missouri Workmen's Compensation Law and the occupational disease amendment thereto.

During the entire period of time when claimant was an employee of Scullin, and up until December 31, 1946, Scullin Steel Company was covered by a policy entitled 'Workmen's Compensation and Employer's Liability Contract' issued by Consolidated Underwriters. Attached thereto was a standard endorsement including occupational disease coverage under the ...