Lumbermen's Mut. Cas. Co. v. Lynch

• Docket Number: 28456.
• Decision Date: 14 November 1940
• Citation: Lumbermen's Mut. Cas. Co. v. Lynch, 63 Ga.App. 530, 11 S.E.2d 699, 28456. (Ga. App. Nov 14, 1940)
• Parties: LUMBERMEN'S MUT. CASUALTY CO. et al. v. LYNCH.
• Court: Georgia Court of Appeals

11 S.E.2d 699

63 Ga.App. 530

LUMBERMEN'S MUT. CASUALTY CO. et al. v. LYNCH.

No. 28456.

Court of Appeals of Georgia, Division No. 2.

November 14, 1940

Syllabus by the Court.

In order to be compensable, a disease must arise out of, or result from, an accident or injury arising out of and in the course of employment. Code 1933, § 114-102.

If facts show a causal connection between injury and the development of disease, the victim of the disease is entitled to compensation. Code 1933, § 114-102.

Generally diseases resulting from unusual and unexpected inhalation of gas fumes or dust result from "accident" within meaning of the Compensation Act, but where injury is the natural result of the existence of conditions necessarily incidental to the work being performed, as where the resulting diseases are occupational diseases, they do not result from "accident" and are not compensable. Code 1933, § 114-102.

An occupational or industrial disease is not compensable under the Compensation Act. Code 1933, § 114-102.

An "occupational disease" or "industrial disease" is one caused by, or especially incident to, a particular employment, and is a diseased condition arising gradually from the character of the work in which the employee is engaged, that is, a disease which is acquired in the usual and ordinary course of an employment, and which from common experience is recognized to be incidental thereto. Code 1933, § 114-102.

Where mechanic's disability resulting from diseased condition of his lungs was caused by inhaling gas or fumes from electric welding when he and fellow employee were working in manhole beneath street, the disability was the result of an "accidental injury" and was compensable. Code 1933 § 114-102.

Negligence of an employee, in continuing to work after knowingly inhaling fumes while doing electric welding in manhole under street, did not constitute a bar to compensation. Code 1933 § 114-102.

1. Disability to an employee caused by a disease which results from unusual, sudden, and unexpected inhalation of gas or fumes, while performing the duties of his employment, where the disease causing the injury is not the natural result of the existence of conditions necessarily incident to the work being performed, is the result of an injury by accident and is compensable under the compensation act.

2. Negligence of an employee in continuing to work after knowingly inhaling the fumes under the conditions above indicated does not constitute a bar to compensation.

Frank C. Lynch filed with the Industrial Board, a claim for compensation against the Monticello Hardware Company and the Lumbermen's Mutual Casualty Company. It appeared from the evidence at the hearing before the single director that the claimant was employed as a mechanic by the Monticello Hardware Company; that in performing his duties he used an electric welder; that on January 14, 1939, he and a fellow employee were engaged, in behalf of their employer, in welding a tank located in a manhole beneath a street in the City of Monticello; that the claimant worked in the manhole from 9 in the morning until noon, and then from 1:00 until 5 P. M., coming to the surface for fresh air at frequent intervals; that the electric welding being done in the manhole, caused fumes which could be seen and smelled; that the claimant was aware of the fumes during the entire day and shortly before noon noticed that inhaling such fumes affected his breathing; that soon after he returned to work at one o'clock the claimant felt weak and experienced a choking sensation, with difficulty in breathing, so that when the claimant finished work at 5 o'clock that afternoon he was suffering from a shortness of breath, and felt weak; that shortly after midnight the claimant became nauseated and suffered pain in his chest; that the following day the claimant was examined by a physician who diagnosed his condition as edema of the lungs; and that on account of such condition he became disabled and was unable to perform his work for "some" seven weeks, for which he sought compensation.

The physician who was called to examine and treat the claimant testified that edema of the lungs could be caused by fumes and gas resulting from the welding of metals. He further testified that he had observed people with "edema of the glottis and edema of the lining of the lungs that were in great distress from the fumes from that gas," and, "I should think that the gases of any nature that are irritable, chlorine or carbon monoxide or the nature of the heavy metals that can be liberated into a gaseous state can cause that." He also testified that in his opinion the claimant was suffering from acute bronchial inflammation of the inner lining of the lungs, presumably, from the history of the case, due to an irritant. He testified that from his examination and the history of the case he would state that the claimant "received some injury from a gaseous substance that produced an irritation, as it came on after the experience that he described the symptom of which was dizziness following the trip down the manhole," and that his conclusion was that "it was an irritation due to gases that he inhaled at that time." The claimant testified that he had been welding for many years, that he had been using an electric welder for some four years and that he had never suffered any ill effects therefrom before the instance involved in the present proceedings.

The single director denied compensation, holding that the claimant's "disability did not result from an accidental injury arising out of and in the course of his employment, nor to a disease or condition which resulted naturally and unavoidably from an accidental injury; but that his disability was due to a congested and irritated condition of the lungs brought about, not by an accidental injury, but what was in the nature of an occupational disease due to long and continued exposure to gas and fumes," and that "there is no evidence establishing any definite injury at any definite time, but to the contrary it appears that his condition gradually developed during the day from continued exposure to the fumes." He further found that in the present case the "claimant was forewarned of the fact that the fumes were causing nausea and weakness, and he should have foreseen and expected that the continuous exposure to the fumes would be injurious to his health," and that "after several hours of inhaling the fumes he began feeling the ill effects of the fumes, but he continued exposing himself to the fumes and because of this continuous exposure his condition gradually grew worse, and finally resulted in the disease from which he suffered for seven weeks."

The full board, upon appeal, reviewed and affirmed the award of the hearing director. The claimant appealed from that award to the superior court of Jasper County, where the award of the board was reversed. The order of the court, in part is as follows: "It is the opinion of the court that the award or decree of Harry E. Monroe, on May 26, 1939, and the award of approval by the full board on June 19, 1939, should be reversed on the ground that said award is contrary to law, for the reason that it is without evidence to support it, in that the evidence in the case demands the single director and full board should have...