In re Pero

• Decision Date: 17 December 1935
• Docket Number: 1925
• Citation: 52 P.2d 690,49 Wyo. 131
• Parties: IN RE PERO.; v. COLLIER-LATIMER, INC., ET AL PERO
• Court: Wyoming Supreme Court

52 P.2d 690

49 Wyo. 131

IN RE PERO.;

PERO v. COLLIER-LATIMER, INC., ET AL

No. 1925

Supreme Court of Wyoming

December 17, 1935

APPEAL from the District Court of Albany County; V. J. TIDBALL Judge.

Proceedings under the Workmen's Compensation Act by Leonard J. Pero employee, opposed by Collier-Latimer, Inc., employer, and J Kirk Baldwin, Treasurer of the State of Wyoming. From an order awarding compensation for permanent partial disability the state treasurer appeals.

Affirmed.

For the appellant, the cause was submitted on the brief of Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne.

Silicosis is described in Re Patrick Sullivan, (Mass.) 164 N.E. 457. The diagnosis in the present case is theoretical and not susceptible of positive demonstration. The formal petition for award was not filed until the summer of 1934 and was out of time. This is a jurisdictional requirement. In re Martini, 38 Wyo. 172; 124-112, R. S. A claim for accident must be related to a definite event, time and place. Adams v. Company, (Mich.) 148 N.W. 495; Laveck v. Park Davis Company, (Mich.) 157 N.W. 72; State v. Court, (Minn.) 164 N.W. 817; Hendrickson v. Fibre Company, (Del.) 136 A. 375; Millings Company v. Comm., (Utah) 206 P. 278; Jones & Rinehart v. Company, (W. Va.) 168 S.E. 482; Miller v. Transfer Company, (Mo.) 32 S.W.2d 450; Canilla v. Company, 154 So. 406; Thompson v. Mfg. Company, (N. H.) 170 A. 769; Linnane v. Browning Company, (Conn.) 99 A. 507. It must be an injury caused by accident. Sec. 124-102, R. S.; Wyo. Const. Article X, Sec. 4. Pertinent provisions of the Compensation Law are Secs. 124-104, 106, 112, 116 and 120. Zancanelli v. Coal and Coke Company, 25 Wyo. 511. Accidents are defined by the foregoing authorities and numerous others that might be cited. It must be a condition other than a disease, except where disease shall directly result from an injury incurred in the employment. Secs. 124-106-7 (m) R. S. Under the circumstances in this case, the condition was not unusual or unexpected. Claimant worked in a cloud of dust from the beginning to the end of his employment. That was the normal condition. The breathing of limestone dustladen air is not an accident, but one of the natural and expected events of the occupation. Johnson v. Company, (Mass.) 104 N.E. 735; Williams v. Guest, 1 K. B. 497 (Eng.); Re Sullivan, (Mass.) 164 N.E. 457; Moore Company v. Company, (Ind.) 142 N.E. 19; Donnelly v. Company, (Minn.) 201 N.W. 305; Labanoski v. Company, (Ill.) 126 N.E. 548; Jones v. Rinehart & Dennis, supra; Canilla v. Company, supra. None of the Compensation Acts in this state include occupational diseases. 1 Honnold, 138 P. 436, 1917; State v. Acc. Comm., (Calif.) 191 P. 26. The following cases were brought under the common law for negligence notwithstanding Workmen's Compensation Law. Donnelly v. Mfg. Co., supra; Labanoski v. Company, supra; Hendrickson v. Fibre Company, supra; Jones v. Rinehart & Dennis, Inc., supra.

For the claimant and respondent, the cause was submitted on the brief of J. R. Sullivan, of Laramie.

The Martini case, 38 Wyo. 172, cited by appellant, discloses a different question than the one involved here. In the present case a claim was filed in 1931 within the time required by the statute and payments were made to the applicant for a period of six months, and there is no record of any reason why these payments were discontinued. The matter was merely held in abeyance. His reapplication should not be considered as a new application or a new claim within the limitations provided by the Compensation statute. Cabral v. Company, 72 A. L. R. 1118. The next contention by appellant is that silicosis is an occupational disease and not one resulting from accident and personal injury--therefore, not within the Compensation Law. As a general rule, a compensable injury must be related to a definite event, time and place, but these terms are not literally construed by the courts. It would be impossible for the claimant here to show just when his lungs were injured--just when he inhaled the first particles of dust. The event is made clear by the fact that after claimant had worked six weeks, he was compelled on a day certain, because of pain and cramps in his lungs, and spitting blood, to discontinue his work. We also contend that it must be an injury caused by accident. Article X, Sec. 4 of the Constitution. A diseased condition directly resulting from an injury is within the statute. Sec. 124-107, R. S. The words "injuries sustained in extra-hazardous employment" as used in the statute, include death resulting from an injury or injuries as a result of employment, and while at work in or about the premises occupied, used or controlled by the employer. Sec. 134-106-7, sub-div. (1), 28 R. C. L. 787. The condition that respondent is suffering from is not a disease in a general sense of the term. It is the result of the injury to lung tissue by the effect of sharp cutting particles of limestone rock drawn into the lungs in the course of his employment. The facts closely resemble those in the case of Monark Battery Company v. Commission, 188 N.E. 413; see also Tri-State Contractors v. Althouse, (Okla.) 27 P.2d 1041; Dille v. Coal Company, (Iowa) 250 N.W. 607; T. M. Crutcher Dental, Inc. v. Miller, (Ky.) 64 S.W.2d 466; Oil Company v. Guthrie, (Okla.) 27 P.2d 814; Stanislaw v. Collins Company, 116 Ky. 193. Where the disease results from an accidental injury as distinguished from an occupational disease, the claimant is entitled to compensation. The judgment should be affirmed.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case arose under the Workmen's Compensation Law of Wyoming and the facts involved are not in dispute. They may be stated thus:

Claimant, Leonard J. Pero, some time in March or April, 1931, commenced work for Collier-Latimer, Inc., the employer, as an attendant on a rock crushing machine which was used to supply crushed rock for a highway construction job located some three miles east of Laramie, Wyoming. At that time, so his testimony is, he was in excellent health, about twenty-one or twenty-two years of age, and had shortly before been married.

Pero's duties as employee were to see to it that the rock was properly fed into the crusher through a chute, which was provided with a gate. He stood on a platform alongside of the machine, with a long rake which he used to push the rock into it. His place was close to the mouth of the crusher, consequently, and about two feet from it, in fact, most of the time. This location was a very dusty one as it was on the east side of the machine and the prevailing winds appear to have come from the west. His clothing, face and hands were all the while coated with the dust which arose from the operation of the crusher. During the eight hours of his working shift he was constantly enveloped with this rock dust. He seems to have been afforded no protection whatsoever from the flying particles and no one appears to have told him that there was any danger entailed through inhaling them until long after he stopped working for Collier-Latimer, Inc.

Allowing for time off due to broken machinery he was engaged in the occupation described for a period of about six weeks. About a week before June 29, 1931, claimant commenced coughing and continued to do so until on that date, or shortly before, he began coughing up blood. He immediately consulted a physician, who diagnosed his condition generally as pneumonoconiosis and especially as chronic silicosis of both lungs and that it was caused by the "inhalation of sharp, cutting pieces of silica or rock dust, recently ground, and these sharp pieces in the lungs cut into the substance of the lungs and bury themselves in the walls or the lining of the air passages." This in time produced "an increased fibrosis in the lung tissue--that is, a more marked deposit of fibrous tissue in the lungs surrounding the bronchi and the larger air passages near the hilus of the lungs."

The workman was ordered by the doctor to stop work at once and to enter a hospital, where he underwent treatment from July 6th to 16th, inclusive, 1931. At the end of that time he was allowed to return to his home under the physician's care until October 20, 1931. About seven months after he left the hospital Pero obtained work, first as a teamster and thereafter in a grocery store. In the last mentioned employment he was obliged constantly to lift heavy crates. This work necessarily demanded increased expansion of the lungs, with a consequent tearing of the tissues, as the attending physician testified. Pero was obliged to stop this work five or six times for two or three days at a time, and finally, on the physician's advice, gave it up entirely November 20, 1934. Since that date, until February 8, 1935, the date of the hearing presently to be mentioned, he was unemployed. He at that time had a wife and two minor children dependent upon him.

July 6, 1931, Pero filed his "Employee's Report of Accident" in the district court of Albany County. In that report he stated that the accident occurred on June 26, 1931, and was caused by his inhaling limestone dust "while engaged in feeding rock crusher." The nature of the injury was then indicated as "impairment of lungs" and that it had produced temporary total disability. July 23, 1931, the employer filed its report in the matter, wherein the statement was made that the accident was not due solely to the culpable negligence of the employee. The employer did not dispute the workman's claim for compensation.

By appropriate court order, under date of July 27, 1931, which appears never to have been...