Marie v. Standard Steel Works, 22650

• Decision Date: 03 March 1958
• Docket Number: No. 22650,22650
• Parties: Lawrence R. MARIE, Respondent, v. STANDARD STEEL WORKS, a Corporation, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants.
• Court: Missouri Court of Appeals

Page 368

311 S.W.2d 368

Lawrence R. MARIE, Respondent, v. STANDARD STEEL WORKS, a Corporation, Employer, and Employers

Mutual Liability Insurance Company, Insurer, Appellants.

No. 22650.

Kansas City Court of Appeals, Missouri.

March 3, 1958.

G. W. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.

Harry C. Clark, Kansas City, for respondent.

BROADDUS, Presiding Judge.

This is a workman's compensation case. On October 29, 1953 Lawrence R. Marie, respondent, filed a claim for compensation against his employer Standard Steel Works, and its insurer, Employers Mutual Liability Insurance Company. This claim stated that Mr. Marie had sustained a permanent loss of hearing due to traumatic injuries to both ears as a result of severe noise in connection with his job. The claim further stated that the 'Date of accident and/or series of accidents and/or occupational disease was on or about December 1, 1952.' The amended answer to the claim admitted the jurisdiction of the Division of Workmen's Compensation to hear the evidence, but denied that the employee had suffered any injury or compensable disability or suffered an accident arising out of and in the course of his employment with the employer.

At the hearing it was admitted that Standard Steel Works was an employer operating under the provisions of the Missouri Workmen's Compensation Law and that its liability under said law was fully insured by the Employers Mutual Liability Insurance Company. It was further admitted that on or about December 1, 1952, Marie was an employee of Standard Steel Works and was working under the provisions of the Compensation Act. It was likewise agreed that the average weekly wage was $75.

Hearing was held on the claim at various times before a Referee, and on March 5, 1956, said Referee entered an award in favor of respondent and against appellants and awarded as compensation for occupational disease the sum of thirty dollars ($30) per week for 80.803 weeks based on a finding of 48.09% combined permanent loss of hearing in both ears. Said Referee further found the date as 'On or before December 1, 1952', and that employee 'Was employed as a welder and as such he was required to work inside steel tanks being assembled while other employees were engaged in working on the same and other tanks close by using sledges, hammers and grinders both inside and outside said tanks. Employee was thereby subjected and exposed to constant, daily and excessive noise of an injurious intensity over a period of some six or seven years prior to filing of claim herein.'

In due time appellants filed an application for a review of the award of the Referee by the Industrial Commission. On June 20, 1956, the claim was submitted to the Industrial Commission on oral argument and briefs of counsel for all parties. By a final award the Commission affirmed in all respects the award of the Referee. By its additional findings of fact and conclusions of law the Commission declared:

'We find and believe from all the evidence that noise of sufficient quality, intensity and duration can and does result in loss of hearing; that the employee, Lawrence R. Marie, while in the employ of Standard Steel Works, a corporation, worked in noise of a quality and quantity and over a sufficient period of time to result in loss of hearing; that said employee was required to and did work under conditions which constituted a particular and peculiar hazard of the employment and which subjected and exposed him to noise of an injurious intensity over a period of six or seven years; that, as a result thereof, said employee sustained cumulative damage to both inner ears; and that such exposure to noise, occurring repetitively and culminating in disability, if ascribed to accident, would necessitate our dealing with innumerable traumatic episodes entailing innumerable dates of accidents. Gould's Medical Dictionary, Fifth Edition, defines disease as 'a disturbance of function or structure of any organ or part of the body'. Occupational disease is not defined by statute in this state, but occupational diseases have been defined as those that occur incident to employment and are due to some factor peculiar to the occupation. Therefore, compensation in this case is predicated on the basis of occupational disease as the result of gradual destruction or damage to the auditory nerve endings bilaterally, caused by the noise exposure in his occupation as found above. * * *'

In due time appellants filed with the Commission notice of appeal to the Circuit Court of Clay County, which court on February 11, 1956, affirmed the final award of the Commission. From said judgment employer and insurer perfected this appeal.

On this appeal appellants do not contend that the Commission's findings, that respondent sustained a cumulative loss of hearing of 48.09% as a result of noise incidental to his employment, are not sustained by the evidence. They do contend, however, that the Commission 'acted without and in excess of its powers in declaring that alleged 'noise-induced hearing loss' is an occupational disease within the meaning of the Missouri Workmen's Compensation Law.' The question is one of first impression in this State.

The Workmen's Compensation Act as originally enacted (Laws of Missouri 1925, p. 375, sec. 7; R.S.Mo.1929, Sec. 3305(b); now V.A.M.S. Sec. 287.020 contained this provision:

'* * * Provided, that nothing in this chapter contained shall be construed to deprive employees of their rights under the laws of this state pertaining to occupational diseases.'

In 1931 the Legislature enacted the so-called 'Occupational Disease Amendment,' Laws of Missouri, 1931, p. 382, R.S.Mo. 1939, Sec. 3695 (now V.A.M.S. Sec. 287.020) adding to the above proviso of the original law so that the section read after amendment:

'Provided, that nothing in this chapter contained shall be construed to deprive employees of their rights under the laws of...