Herrera v. Fluor Utah, Inc.

• Decision Date: 27 April 1976
• Docket Number: No. 2221,2221
• Citation: 89 N.M. 245,550 P.2d 144,1976 NMCA 45
• Parties: Nick HERRERA, Plaintiff-Appellee, v. FLUOR UTAH, INC., Employer, and the Hartford Insurance Company, Insurer, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 144

550 P.2d 144

89 N.M. 245

Nick HERRERA, Plaintiff-Appellee, v. FLUOR UTAH, INC., Employer, and the Hartford Insurance Company, Insurer, Defendants-Appellants.

No. 2221.

Court of Appeals of New Mexico.

April 27, 1976.

Certiorari Denied May 20, 1976.

William P. Gralow, Civerolo, Hansen & Wolf, Albuquerque, for appellants

James E. Thomson, Zinn & Donnell, Santa Fe, for appellee.

OPINION

LOPEZ, Judge.

The plaintiff brought suit in the district court for compensation for an occupational disease incurred while working for Fluor Utah, Inc. The suit was brought pursuant to the New Mexico Occupational Disease Disablement Law § 59--11--1 through § 59--11--43, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1). Judgment was entered by the trial court in favor of the plaintiff and the defendants appeal. We affirm.

The defendants present three points for reversal: (1) that plaintiff does not suffer from a compensable disease; (2) that the plaintiff is not totally disabled; (3) that the court erred in allowing one of the plaintiff's doctors to respond to plaintiff's counsel's questions on the law.

The plaintiff is 30 years old with a 10th grade education. His usual employment is as a painter. The plaintiff was working for the defendant as a painter when he inhaled fumes from paint that he was applying. The trial judge found that this exposure to paint caused him to develop a permanent allergic disorder to paint and other substances resulting in severe and chronic bronchitis, kidney disorders and chronic asthma.

The defendants' first point is that the plaintiff's disease is not compensable under the New Mexico Occupational Disease Disablement Law. The reasons advanced are two-fold: (1) that the disease suffered by the plaintiff does not fit the statutory definition of occupational disease, and (2) that allergies are not occupational diseases acquired in the course of employment.

The first argument requires an examination of the statute. The definition of occupational disease found there is '. . . 'occupational disease' includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . ..' Section 59--11--21, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1).

The defendants argue that the plaintiff's allergy is not peculiar to the occupation of painting since the plaintiff is apparently allergic to other substances which can be found in other work environments besides painting jobs. They also argue that the phrase 'due to causes in excess of the ordinary hazards of employment' means there must be an unusual exposure to the paint, a danger greater than the usual danger from paint. An early case from the Supreme Court of Connecticut defined the meaning of these terms:

'This definition does not require that a disease, to be within the definition, should be one which arises solely out of the particular kind of employment in which the employee is engaged, nor that it should be due to causes in excess of the ordinary hazards of that particular kind of employment. . . . The phrase, 'peculiar to the occupation,' is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations . . . and the phrase 'employment as such' means employment in general. To come within the definition, an occupational disease must be a disease which is a natural incident of a particular occupation, and must attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.'

Glodenis v. American Brass Co., 118 Conn. 29, 40, 170 A. 146, 150 (1934); quoted in LeLenko v. Wilson H. Lee Co., 128 Conn. 499, 24 A.2d 253 (1942). See, e.g., Ritter v. Hawkeye Security Insurance Co., 178 Neb. 792, 135 N.W.2d 470 (1965). Larson states the test to be: '(1) whether the employment conditions actually caused the disability, and (2) whether these conditions were peculiar to the employment in the sense that they were encountered there in a degree beyond that prevailing in employment generally.' 1A Larson's Workmen's Compensation Law, § 41.62 at 7--298 to 7--299; Aleutian Homes v. Fischer, 418 P.2d 769 (Alaska 1966).

Applying this definition to the defendants' contention it is apparent that the fact that the plaintiff is now allergic to substances found in many other environments does not domonstrate that his disease, the allergy itself, was not acquired from his experience at the defendant's place of employment. The defendants' argument that others were exposed to the paint and did not get ill is a misinterpretation of the statute as shown from the quotation in Glodenis, supra. The statute speaks of the ordinary hazards of employment 'as such'; not the ordinary hazards of a particular job.

The defendants' other argument is that allergies cannot be compensable diseases because they are not acquired in the course of employment, but are rather brought to the employment. This argument rests on a premise contrary to the trial court's findings. The trial judge found that the plaintiff developed an allergy as a result of the job; that is, that the allergy itself was an occupational disease.

The defendants' argument is also based on the supposition that the plaintiff's reaction to the paint fumes was the result of his own undue susceptibility, and therefore non-compensable. This issue was addressed by Judge Learned Hand in Crain Handling Co. v. Sweeny, 102 F.2d 464 (2d Cir. 1939): 'In order to recover a workman must be exposed to hazards greater than those involved in ordinary living, and the disease must arise from one of these. (Citations omitted). But although we must find special dangers in the employment and that the disease arises from them, I can see no reason for limiting the protected class to those who have a normal resistance to such diseases, or for excluding those who are abnormally vulnerable.' This position has been adopted by a majority of states. 1A Larson's Workmen's Compensation Law, § 41.62 (1973). See, e.g. Aleutian Homes v. Fischer, supra; Bober v. Independent Plating Corporation, 28 N.J. 160, 145 A.2d 463 (1958). Our statute by its terms does not exclude any class of workmen once its other requirements have been met and we see no reason to impart this additional restriction to it.

Our disagreement with the dissent is two-fold. The first point is that the substantiality of the evidence to support the trial court's findings (Trial Court's Findings of Fact 4 and 5) that paint fumes caused the allergy is not the appellant's basis for appeal and the court would exceed its appellant function in addressing this issue.

Our other point of disagreement with the dissent is over the evidence available in the record to support the trial court's findings with regard to causation. Doctor Novosad's testimony was that the plaintiff was allergic to paint. The doctor saw the plaintiff three days after the exposure to the paint. The doctor hospitalized him, and said that '(h)e had extensive studies during this time . . . he was studied and treated extensively over the next several months for this.' The tests done to determine the nature of the plaintiff's allergy were described at great length. The doctor summarized his reasons for believing that the plaintiff's allergy was to paint as based upon 'one, his history, two, the clinical course, with various things that have happened to him, three, the elimination of other possibilities or rather other probabilities and, four, taking into consideration the detailed allergist's report. . . .' In conclusion, the doctor's testimony was that there was no doubt, in all medical probability, that there was an association between the plaintiff's reaction and his exposure at the defendant's place of employment to the paint. The trial court did not think that the doctor was 'guessing' and there was substantial evidence to support the trial court's findings.

There was, of course, one way to conclusively determine the cause of the plaintiff's allergy--to expose him to more of the same paint. Doctors Smith and Novosad agreed that the serious dangers to the plaintiff which could result from such a test were not justified by the benefits of knowing with absolute certainty the cause of the plaintiff's reactions. The law should not require measures which the medical experts decline to take for fear of endangering an individual's health.

In their second point the defendants take issue with the trial court's finding that the plaintiff is totally and permanently disabled. 'Disablement' is defined in the statute as '. . . total physical incapacity by reason of an occupational disease as defined in this act to perform any work for remuneration or profit in the pursuant in which he was engaged. . . .' Section 59--11--4(a), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1). There was substantial evidence to support the trial judge's finding that the plaintiff is unable to return to work as a painter. The contention that 'pursuit' should be given a broad interpretation, so that the plaintiff's possibility of obtaining employment in other fields must be considered, has been foreclosed by our Supreme Court's decision in Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965). In that case the Court held that 'pursuit' meant 'occupation' or 'vocation'. The result was that the court granted plaintiff compensation even though he was employed as a car inspector since he could no longer work at his previous occupation as a gasoline filling station attendant.

The defendants' third point is that the trial court erred in permitting testimony by an expert witness about a legal conclusion. There were three different questions to which objection was...