Industrial Com'n of Colo. v. Ule

• Decision Date: 19 August 1935
• Docket Number: 13668.
• Citation: 97 Colo. 253,48 P.2d 803
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. ULE.
• Court: Colorado Supreme Court

48 P.2d 803

97 Colo. 253

INDUSTRIAL COMMISSION OF COLORADO et al. v. ULE.

No. 13668.

Supreme Court of Colorado

August 19, 1935

In Department.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Proceeding under the Workmen's Compensation Act by Lucy M. Ule against the Industrial Commission of Colorado and others. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Paul P. Prosser, Atty. Gen., and M. S. Ginsberg Asst. Atty. Gen., for plaintiff in error Industrial Commission of Colorado.

Harold Clark Thompson, of Denver, for plaintiff in error State Compensation Insurance Fund.

James D. Parriott, City Atty., and Robert Kirschwing, Asst. City Atty., both of Denver, for plaintiff in error City and County of Denver.

Carl Cline and William E. Lester, both of Denver, for defendant in error.

BUTLER Chief Justice.

While John L. Ule was working for the City and County of Denver, he sustained an injury that resulted in his death. His widow, a dependent, applied for compensation. The Industrial Commission disallowed her claim. The district court vacated the award, and remanded the case to the commission with direction to enter an award in favor of the claimant. The commission, the City and County of Denver, and the State Compensation Fund (the insurance carrier) are here seeking a reversal of the judgment.

The following facts are established by the findings of the commission and by undisputed evidence, which we treat as findings of fact (Prouse v. Industrial Commission, 69 Colo. 382, 194 P. 625; Winteroth v. Industrial Commission, 93 Colo. 38, 22 P.2d 865): John L. Ule was employed as a woodworker at the Denver Municipal Airport. He worked principally in the 'dope' shed, where a preparation, called by the witnesses 'dope,' and which, for the sake of brevity, we shall refer to by that name, was applied to the bodies and wings of airplanes by means of a spray gun. At times Ule assisted in applying the 'dope.' His exposures to the 'dope' were as follows: October and December, 1932, not more than five hours each month; November, none; January February, and April, about five hours each month; March none; May, a very short job. His exposure during all those months did not exceed a total of twenty to twenty-five hours. At various times between January and May, 1933, Ule showed symptoms of 'dope' poisoning, but it did not interfere with his work. On May 21, 22, and 23 Ule was subjected to an unusual and excessive exposure, two 'dope' guns being employed and work on the airplane being pushed as rapidly as possible. On the evening of May 23, he became so ill from 'dope' poisoning that he had to be assisted to a car. His lower limbs up to his knees became numb. He had to quit work on June 7. His disability continued until his death on January 1, 1934, which was the proximate result of the 'dope' poisoning. Cases of airplane 'dope' poisoning are rare and unusual, and 'few cases and little about them are known to the medical profession.' The only literature on the subject is contained in Bauer's Manual of Aviation Medicine and a pamphlet published by the United States Navy. Since May 23, 1933, there has been administered to employees at the municipal airport exposed to airplane 'dope' three quarts of milk each day and a quantity of whisky each evening to prevent poisoning. Prior to that date no such precaution was taken, nor were respirators or masks furnished to the employees, presumably because so little was known about the effects of exposure to the 'dope' and serious results therefrom were not foreseen or expected by either the employer or Ule.

The commission held, as a matter of law, that Ule's death was not due to accident as defined by law. In an action to vacate the award, the district court held to the contrary.

We think the district court was right. The death was not due to an occupational disease, as contended by the plaintiffs in error, but to accident.

An occupational disease is one 'contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incident to a particular employment.' Industrial Commission v. Roth, 98 Ohio St. 34, 120 N.E. 172, 173, 6 A.L.R. 1463. It is one 'normally peculiar to and gradually caused by the occupation.' Dillingham's Case, 127 Me. 245, 142 A. 865. 'One which is due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation.' Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303, 265 P. 739, 741.

There is nothing in the evidence to indicate that the serious disability suffered by Ule on May 23, which resulted in his death, was the natural and reasonably to be expected result of his employment; or that his...