Gunter v. Sharp & Dohme, Inc.

• Decision Date: 24 June 1930
• Docket Number: 49.
• Citation: 151 A. 134,159 Md. 438
• Parties: GUNTER v. SHARP & DOHME, INC., ET AL.
• Court: Maryland Court of Appeals

151 A. 134

159 Md. 438

GUNTER v. SHARP & DOHME, INC., ET AL.

No. 49.

Court of Appeals of Maryland

June 24, 1930

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Proceeding under the Workmen's Compensation Act by John E. Gunter opposed by Sharp & Dohme, Inc., employer, and the American Mutual Liability Insurance Company, insurer. The Industrial Accident Commission made an award to the claimant, and employer and insurer appealed. From an adverse judgment claimant appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, OFFUTT, DIGGES PARKE, and SLOAN, JJ.

James K. Cullen, of Baltimore (Rowe & Cullen, of Baltimore, on the brief), for appellant.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore, for appellees.

SLOAN J.

The appellant, John E. Gunter, was an employee of Sharp and Dohme, Inc., engaged in the mixing of bichloride and cyanide powders, and had been so engaged for three years preceding the disability for which he claims compensation. He is suffering from nephritis, or Bright's disease, which he contends is the result of an accidental injury, the accident alleged being the inhalation of the fumes or dust arising from bichloride of mercury and cyanide of potassium. The Accident Commission had made an award to the claimant, from which the employer and insurer appealed. At the trial on appeal the only issue was as to whether "the disability of the claimant" was "the result of an accidental injury arising out of and in the course of his employment." At the conclusion of the claimant's evidence the employer and insurer submitted two prayers for directed verdicts: (1) That there was no evidence in the case legally sufficient to prove the disability complained of was the result of "an accidental injury arising out of and in the course of his employment"; and, (2) that "the evidence offered on behalf of the claimant, which is uncontradicted, that his disability is the result of an occupation or industry disease and not of an accidental injury," both of which were granted and excepted to by the claimant.

If there was an "accidental injury," there is no dispute that it arose out of and in the course of his employment, and if so, it could not be withdrawn from the consideration of the jury because of the provision of the statute that on appeals "the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same." Code, art. 101, § 56; Hazelwood v. Bittinger (Md.) 150 A. 713.

The question in this case is whether the disability complained of, namely, nephritis or Bright's disease, is the result of an accidental personal injury (Code, art. 101, § 14), or under the testimony is an occupational disease, for the compensation of which the Legislature has made no provision. If an occupational disease there can be no compensation, the Accident Commission having no authority to write into the law objects of compensation for which the Legislature has not provided. On appeal "the court shall determine whether the Commission has justly considered all the facts concerning injury, whether it has exceeded the powers granted it by the Article, whether it has misconstrued the law and facts applicable in the case decided," with the right to either party to have submitted "to a jury any question of fact involved in such case." Article 101, § 56.

According to the testimony of the claimant as read from the transcript of the record from the Accident Commission taken March 23, 1929, he was then fifty-one years of age; for three years he had been mixing bichloride and cyanide powders for Sharp & Dohme in Baltimore, and for three years before that he had been making other kinds of powders. In part he testified as follows:

"Q. Just describe the room there and kind of work that you had been doing for the past three years. Everything surrounding your work? A. It was sometime in November--three years ago, that Mr. Dixon--he is our superintendent--asked me if I would take a job in the bi-chloride of mercury room and I thought it over and said I would. We had a suction fan and we worked along up until last March--just a year ago and in that department there was just two walls with six windows--three in one end and three in the other. The only ventilation we had. The first or second day I went in there I had six powders to mix so that the girls could get to work and on the third day my powders were getting low and I started in to make them on the work bench and I just began to fall around the room. It was in March and we could not open the windows very well and the girls refused to work while I was mixing the powders and I went to the Superintendent and he said do the best that you can. He said the girls could stay out while I was working and then they came back after an hour and a half and started to work. I having charge of the department, I could not tolerate that. The girls would look to me for work and I finally found a way of going into a room that was isolated from the rest of the rooms in March 1928. It only had one window in it. * * * I could not let the door open because the powder would be blown out in the other room and I would have trouble with the girls.

Q. You told the boss about that when they made the inspection? A. At the time they made the inspection there was nothing to it. I had become sick. I asked the boss to move me out of there.

Q. When was that? A. That was before Christmas. He saw that I was getting short of breath. He hinted to me that I was pretty well done up and he would get somebody to fill my place.

Q. Was it necessary for you to wear a mask? A. Yes, sir; we had a respirator.

Q. Describe it. A. We wore a rubber respirator with the sponge. In the summertime it was impossible to wear them. It would burn a red mark around there so we took a piece of cheese cloth and I had mine with a piece of raw cotton in it.

Q. You had that over your nose? A. Over my nose and mouth like that. (Indicating.)

Q. Was it necessary for you to wear this mask all the time? A. I suppose that it was necessary to wear it all the time.

Q. What is yor trouble now? Why aren't you working? A. Well it seems as though my heart has been affected and I can't breathe. My disability, of course I don't know what causes it. Except what I went through--the room you understand, working that way."

He testified further that prior to his present employment he had been in good health. As soon as he would make a batch a headache would come on and eventually he had to quit. The fumes would burn his eyes. Asked, "You didn't see any danger in the department at that time (three years before)?" he answered: "Yes, sir, I saw the danger in it but the idea was you can be careful at anything." Mrs. Gunter testified that her husband had "been complaining with these symptoms since they changed his position from the big room into the small room about a year ago. His headaches did not start until he had been working in the small room a few weeks."

The attending physician testified that the claimant had high blood pressure, "his heart is not compensated and he has nephritis, which is Bright's disease." "He complained of intense headache, shortness of breath, extreme nervousness." Patient told him "it made him feel very giddy and gave him a headache from inhaling those fumes." Asked, "Would the fact that he worked around these chemicals and inhaling these fumes cause the condition he complained of in your opinion?" he answered: "It is possible." "His nephritis and Bright's disease was due to a poison in the system which he probably absorbed in the plant where he worked." The claimant consulted the physician in the fall of 1928, and he then advised the claimant to get some other work, as the work he was doing was not agreeing with him. When claimant began consulting him about his headaches, he said "it was some kind of chemical poisoning," could not say what kind, but assumed it was "because of where claimant was employed but he found nothing definite that told him he was ill from chemical poisoning. He did not examine claimant, but his condition was possibly due to cyanide or mercury poisoning."

This is substantially the evidence which the claimant contends establishes his right to compensation for accidental injury and which the employer and insurer contend supports their theory of an occupational disease for which there is no compensation provided by the act. The claimant relies on the case of Victory Sparkler...