In re Mitchell

• Decision Date: 07 July 1944
• Docket Number: Civil 4677
• Parties: IN THE MATTER OF EDNA S. MITCHELL, et al., Applicants; THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and RAY GILBERT, FRED E. EDWARDS and EARL G. ROOKS, as Members of the Industrial Commission of Arizona, Respondents
• Court: Arizona Supreme Court

150 P.2d 355

61 Ariz. 436

IN THE MATTER OF EDNA S. MITCHELL, et al., Applicants; THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and RAY GILBERT, FRED E. EDWARDS and EARL G. ROOKS, as Members of the Industrial Commission of Arizona, Respondents

Civil No. 4677

Supreme Court of Arizona

July 7, 1944

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.

Messrs Fennemore, Craig, Allen & Bledsoe, for Petitioner.

Mr. H S. McCluskey and Mr. Fred O. Wilson, for Respondent Commission.

Mr Louis B. Whitney, for Applicants.

OPINION

UDALL, Superior Judge.

This is a certiorari proceeding under the Workmen's Compensation Law, Article 9, of Chapter 56, Arizona Code Annotated 1939, brought to this court by the Mountain States Telephone and Telegraph Company, a corporation, hereinafter termed the petitioner. It seeks a reversal of an award made August 12, 1943, to Edna S. Mitchell, applicant, for death benefits payable to her for the support of herself and their four minor children then aged 12, 10, 6 and 4 years, respectively. No question is raised as to the amount of the award.

The petitioner-employer was insured with the Industrial Commission of Arizona, as the insurance carrier. Admittedly at the time of the injury both the employee, Mitchell, now deceased, and the employer were subject to the Arizona Workmen's Compensation Law and to the jurisdiction of the commission. Application for rehearing was denied on September 3, 1943, and within the time allowed by law this proceeding for review was initiated.

There are but two questions raised: (a) Does the evidence in the case support the finding of the Industrial Commission of Arizona that the deceased employee died as a result of carbon tetrachloride poisoning; (b) Did the deceased die as a result of an accident arising out of and in the course of his employment within the true meaning of the Workmen's Compensation Law of Arizona?

If this court finds the answer to either or both of these questions is in the negative then the award should be set aside, on the other hand if the answer to both questions is in the affirmative the award should be sustained.

A proper determination of these questions requires a close review and analysis of the evidence as well as the application of the statutory law to the peculiar facts of this case.

While there is some conflict in the medical testimony, we state the evidence in its strongest light in favor of the claim of the applicant. The Commission having made an award to her she is entitled to have the evidence thus considered by us.

Clarence Mitchell, for whose death benefits were awarded by the Commission, was a white American, aged 38 years. He had been in the employ of the petitioner for several years maintaining telephones.

Prior to his last illness, which occurred late in the month of December, 1942, the general health of the deceased was good.

His employment record during the year 1942, based upon a 40-hour week, was nearly perfect. He was absent from work on account of illness only two days during the year.

On or about October 1, 1942, the deceased was assigned to the work of overhauling and repairing telephone switchboards maintained by the petitioner. As a recondition repair man he had worked at various locations prior to December 24, 1942, when he was assigned by the petitioner to service the switchboard at the plant of the Goodyear Aircraft Corporation, at Litchfield Park, Arizona.

In the work that he was doing subsequent to October 1, 1942, the deceased was required to and did use small quantities of carbon tetrachloride at different times and under varying conditions, without any apparent ill effects until he went to work on the switchboard at the Goodyear plant.

Specifically his work involved cleaning the contacts or terminals in the switchboard relays. The space between the contacts in the relays being only 30/1000 of an inch, the usual method of cleaning same was to dip a wooden toothpick in a small bottle of the carbon tetrachloride and apply the chemical to the points. Ordinarily the actual use of the fluid was not more than five or ten minutes at any one time and it would be so used at intervals of six or seven times a day. The record does not disclose as to what amount or how frequently the deceased used this fluid on the Goodyear job. This work required close application and scrutiny.

The switchboard upon which the deceased was working at Goodyear was then located in a room 12 1/2 X 11 1/2 X 9 1/2 feet, which was walled off from the officers' conference room by plywood. The ventilating system was so installed that it was not possible to ventilate the telephone switchboard room without ventilating the officers' conference room. There were employed in the telephone switchboard room, two telephone operators, a relief operator, and two girls operating the teletype machines, and there frequently were as many as ten people in the room.

The telephone switchboard room was a dark room with no windows. It had two small lattice vents near the floor; there was a trap in one corner which could be opened for an escape in an emergency. There was one door which opened near the machine shop but by reason of the noise from the machine shop it was necessary to keep the door closed, in order for the switchboard operators to perform their work. The only ventilation in the room came from a ventilator in the ceiling through which heat from the gas furnaces, or cold air could be brought in the room. This was controlled by a switch. When the cold air was turned on, the officers in the conference room, which was amply ventilated, directed that the switch be thrown and the cold air turned off. The telephone switchboard room was always stuffy and as testified to by some of the women operators "it was almost impossible to sit in there, it was choking and suffocating and practically all of the employees were ill, suffering from colds all winter." In passing it might be noted that the quarters then in use were temporary. Later the exchange was moved to more commodious and better ventilated quarters.

While performing hi s work at the Goodyear plant, the deceased worked in small, confined quarters, about 2 1/2 feet wide, between the switchboard and the cable terminal box. This space was further confined by the wall at one end and the teletype apparatus located within a few feet of where the deceased was working at the other end. The space where he was working was just barely large enough to admit his body and tool box and to pe r mit him to squat down and sit on a box and do his work.

The telephone switchboard room was illuminated by fluorescent lighting but the deceased required an electric light back of the switchboard to see what he was doing. The light, of course, was productive of heat, as were the generator, batteries and motors located in the cable terminal box.

Carbon tetrachloride is highly volatile and heavier than air. Its tendency is to seek the lower levels of the room. Chemically it very closely resembles chloroform.

When the deceased was working with carbon tetrachloride the odor was prevalent throughout the room, to the extent that the switchboard operators complained of feeling nauseated and ill as a result thereof, and called upon him to stop using it. One of them testified "they hated to see him come to work because we knew we were going to get that odor again." When the operators complained of not feeling well, deceased held the bottle across the switchboard and let them smell the contents and told them that this stuff he was using was what was making them and him ill.

On December 24, after working with carbon tetrachloride under said conditions, deceased went to Dr. Enfield, the plant doctor, complaining of gastro intestinal discomfort and gaseous indigestion. He was given a prescription for indigestion and when he did not improve he telephoned Dr. Armbruster, the family physician, and requested him to remain after office hours.

The deceased called on Dr. Armbruster after 5 p.m. December 24th and advised the doctor that he had been working with carbon tetrachloride. He complained of the same symptoms mentioned to the plant physician, plus a tight feeling in his chest, some cough, pain in his back and abdomen, and chilliness. He also told him that he had become acutely sick on the job. The doctor made no investigation or examination, accepting the symptoms the patient gave, he gave him a prescription and sent him home.

The deceased was sick all day Christmas. It had been his ambition for years to get the particular kind of job he was doing, and he returned to work at the Goodyear plant on December 28, 29 and 30, on which latter dates he frequently came from behind the switchboard holding his sides and complaining of his chest; and, would sit down holding his side and complaining, "I hurt so bad all over my chest -- that stuff in the bottle kind of gets me."

On December 31st, on his way to Dr. Armbruster's office, the deceased collapsed and fell several times. He saw the doctor, complained of the same symptoms he had on December 24th, and some additional ones. He was not hospitalized, due to overcrowded hospital conditions. On his way home the deceased again collapsed and had to be assisted. About 9 p.m. January 1, 1943, he was admitted to the Good Samaritan Hospital, with further additional symptoms and died at 6 a.m., January 2, 1943.

In the death certificate, Dr. Armbruster, based upon an incomplete autopsy report, diagnosed the cause of death as "amyloid leukemia"; and subsequently, after the full report was made, the diagnosis was changed to "poisoning and death caused by carbon...