Fitch v. Farmers Union Grain Terminal Ass'n (Amber Mill. Division), 39718
| Decision Date | 03 June 1966 |
| Docket Number | No. 39718,39718 |
| Citation | 274 Minn. 234,143 N.W.2d 192 |
| Parties | Charlotte FITCH, widow of Edward Lee Fitch, deceased employe, Respondent, v. FARMERS UNION GRAIN TERMINAL ASSOCIATION, (AMBER MILLING DIVISION), et al., Relators. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Industrial Commission finding that employer had actual and timely notice of an occupational disease is held to be sustained by the evidence.
2. Medical testimony considered and held adequate to support commission's finding of a causal relationship between conditions of employment and pulmonary emphysema, an occupational disease, and also its finding of a causal relationship between this occupational disease and the death of the employee.
3. The employer-insurer is held to have been adequately apprised that a claim was to be made for total disability preceding the employee's death.
4. An award of death benefits on a proportionate basis as provided by Minn.St. 176.661 held to be justified by the evidence.
Tyrrell, Jardine, Logan & O'Brien and Raymond W. Fitch, St. Paul, for relators.
McGuire & McGuire, Rush City, M. J. McKeon, Duluth, for respondent.
Certiorari upon the relation of the employer and its insurer to review a decision of the Industrial Commission that Edward Lee Fitch, deceased employee of Farmers Union Grain Terminal Association, had suffered temporary total disability subsequent to December 20, 1957, for a total of 145.2 weeks due to an occupational disease described as bronchial asthma and emphysema contracted by the employee as a result of his exposure to grain, flour dust, and insect spray fumigants throughout his long employment by the employer; and that such disease bore a 50-percent relationship to the causes of his death on October 2, 1960.
The commission awarded Charlotte Fitch, widow of the employee, $6,534 compensation for employee's temporary total disability as described; $5,483 for 50 percent of the statutory compensation for his death; full medical and hospital expenses necessitated by the occupational disease; 50 percent of hospital and medical expenses for hospitalization between September 26, 1960, and October 2, 1960; and $225 statutory funeral expenses.
The evidence disclosed that Edward Lee Fitch was 62 years of age at the time of his death and had worked for the employer and its predecessor since 1933; that his employment by Farmers Union commenced in 1942 and continued until July 12, 1957, when it was terminated by the employee because of his inability to perform his work; that for the first 7 years of his employment by Farmers Union he had worked as an oiler and had been required to sweep out accumulated dust and flour waste from floors and downspouts; that on July 1, 1949, he commenced work as a warehouseman and continued in this capacity until he terminated his employment; that as a warehouseman he was required to clean and sweep out flour and dust from railway boxcars; that in this cleaning it was customary to use an air pressure system which would raise a substantial amount of dust; that at regular intervals the mills were fumigated with gas to kill insects and that after such fumigation the odor of the gas would hang about the areas in which the workers were employed and would cause their eyes to water and smart and their lungs to burn so as to make breathing difficult.
The evidence further disclosed that in 1947 this employee began to have difficulty in breathing and would often find himself short of breath; that he would cough and wheeze frequently; that in his last year of work he would tire easily; that during the last months of his work his respiratory condition made it impossible to do ordinary chores around his house; and that on July 12, 1957, he quit work because of pain in his right leg.
On July 17, 1957, the employee was admitted to The Charles T. Miller Hospital in St. Paul where records disclose that he was then suffering from asthma and had suffered from it for several years. In August 1957 he was examined at the Mayo Clinic in Rochester where it was found that he was suffering from intermittent claudication which interfered seriously with his work and which suggested a recent occlusion. A general diagnosis then made disclosed that he was suffering from arteriosclerosis obliterans and that his breathing problem was due to asthmatic bronchitis with chronic pulmonary emphysema. On September 7, 1957, a lumbar sympathectomy was performed upon him at the Mayo Clinic.
On September 20, 1957, the employee was admitted to Rush City Hospital where he was treated by Dr. Joseph Halpin for pneumonia until September 26. On November 27 and December 18, 1957, he saw Dr. Halpin because of asthmatic attacks. On December 20, 1957, employee was hospitalized at Asbury Methodist Hospital in Minneapolis where records disclose that he again gave a history of asthma for the past 15 years and said it had 'not bothered him very much' until the past two months.
On June 16, 1958, the employee was again hospitalized at Miller Hospital where he was treated for pulmonary congestion. He remained there through June 24, 1958, and the records again indicate his complaints of asthma. On June 30, 1958, he was again hospitalized at Rush City Hospital for a respiratory infection and for asthma which he then reported had bothered him for the past 8 to 12 months. He remained at this hospital until July 3, 1958, and returned to it between July 18 and July 24, 1958, and again between August 4 and August 9, 1958, for treatment of his asthma. Throughout this period, Dr. Halpin administered antibiotics to him for his respiratory condition. Dr. Morris Johnson, an internist, testified that X rays taken during this period suggested progressive pulmonary emphysema with cor pulmonale (pulmonary heart disease). On September 20, 1960, following an acute chest pain, the employee was taken to Rush City Hospital where an electrocardiogram disclosed a myocardial infarction. Thereafter he was hospitalized continuously at this hospital until his death on October 2, 1960. During this period hospital records indicate his breathing was difficult and oxygen was required by him during part of each day. All medical experts agree that he died of a myocardial infarction, but an issue developed as to whether the asthmatic condition or emphysema was a contributing factor therein.
As indicated above, the commission found that the employee's exposure to grain, flour dust, and fumigants during the entire period of his employment caused him to contract bronchial asthma and emphysema which totally disabled him between December 20, 1957, and October 2, 1960; that while one cause of his death was his arteriosclerotic heart condition unrelated to his employment, his occupational disease--bronchial asthma and emphysema--was a 50-percent factor therein. The compensation award was based upon the commission's determination that his hospitalization between September 20 and September 26, 1957, was the result of a pneumonic condition not related to his employment, but that his hospitalizations subsequent to September 26, 1957, were necessitated in whole or in part by the occupational disease described.
On April 8, 1958, the employee filed a claim for permanent total disability under a nonindustrial group insurance plan. Therein he stated that a lumbar sympathectomy had been performed at Mayo Clinic to relieve hardening of the arteries and that since this operation he had developed asthma. On July 11, 1958, the hospital records of the employee's stay at Miller Hospital from June 18 to June 24, 1958, were examined by relator insurer. Various other hospital records indicate that upon hospitalization the employee disclosed that he had hospitalization insurance furnished by employee and that he authorized one of the hospitals to permit its insurer to examine the hospital records. Evidence was submitted that employer maintained a claim department and that each claim against it was examined by its employees and then turned over to its insurer.
The Rush City Hospital records covering employee's hospitalization between September 20, 1957, and September 26, 1957, some 10 weeks after his employment had been terminated, establish that he was then suffering from a respiratory condition and was wheezing and coughing.
On October 17, 1960, attorneys for petitioner notified the employer in writing that the employee had died on October 2, 1960, and that his death had been caused by an occupational disease and a heart attack, both claimed to have arisen out of his employment, for which compensation was claimed.
Relators contend that the decision of the Industrial Commission should be reversed because:
(1) The finding of the Industrial Commission that the employer had due notice and knowledge of an occupational disease which resulted in the disability of the employee commencing December 20, 1957, is not sustained by the evidence.
(2) The evidence is inadequate to sustain the finding by the Industrial Commission (a) that the employee contracted pulmonary disease as a result of his exposure to employment conditions prevailing at his place of employment while he was working there; and (b) that the pulmonary disease was a proximate cause of death.
(3) An award of disability benefits by the Industrial Commission was not requested by the employee.
(4) The award of proportionate death benefits by the Industrial Commission pursuant to Minn.St. 176.661 was not justified because (a) there was no medical evidence upon which to base a finding of the proportion in which the occupational disease was a causative factor of the death; and (b) the evidence establishes that the employee refused or willfully failed to use standard safety appliances ordered and provided for his protection and use.
As stated, the Industrial Commission found that the employee contracted pulmonary disease consisting of bronchial asthma and...
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