Marie v. Standard Steel Works
| Decision Date | 12 January 1959 |
| Docket Number | No. 46948,46948 |
| Citation | 319 S.W.2d 871 |
| Parties | Lawrence R. MARIE, Respondent, v. STANDARD STEEL WORKS, a Corporation, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants. |
| Court | Missouri Supreme Court |
G. W. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellants.
Harry C. Clark, Kansas City. for respondent.
This is a Workmen's Compensation case in which the claimant, Lawrence R. Marie, seeks an award of compensation on the theory that he sustained a noise-induced loss of hearing as a result of occupational disease arising out of and in the course of his employment as a welder in the trailertank fabricating department of his employer, Standard Steel Works. The referee entered an award in favor of the claimant and against the employer and its insurer, Employers Mutual Liability Insurance Company. The employer and insurer filed an application for a review of the award and the Industrial Commission affirmed the award in all respects. An appeal was then taken to the Circuit Court of Clay County where the final award of the commission was affirmed. On appeal to the Kansas City Court of Appeals, the judgment was reversed. Marie v. Standard Steel Works, Mo.App., 311 S.W.2d 368. On application to this court the cause was ordered transferred.
The cause is before us for determination as if it were an original appeal to this court. Article V, Sec. 10, Constitution of Missouri 1945; Supreme Court Rule 2.06, 42 V.A.M.S. The appellants concede that the evidence supports the commission's finding that the respondent sustained cumulative loss of hearing of 48.09% as a result of noise incidental to his employment. The principal questions are whether the claimant's impaired hearing is a disability resulting from an occupational disease within the meaning of the Workmen's Compensation Act and whether the claim was filed within the one year statute of limitations provided by the act.
Mr. Marie, the claimant, was 39 years old at the time of the trial. He was originally employed in 1941, entered military service in 1942 and returned to his employment with Standard Steel Works in 1946. Since then he has worked continuously for the same employer as a welder, fabricating trailer-truck tanks. These tanks, designed principally for transportation of gasoline and oil, are divided into several compartments of various sizes separated by bulkheads. The tank itself was fashioned by placing the prefabricated steel in a jig and beating it with sledge hammers until the ends came together. Holes were then cut in the top of the tank for each compartment. The claimant, Marie, and other employees would then enter the compartments in order to weld the bulkheads in place. When the bulkheads were not exactly in position, it was necessary for Marie and his fellow employees to drive the bulkheads into their proper places with sledge hammers before welding them since the capacity of the compartment was determined by bulkheads being in proper position. Marie testified that he ordinarily worked inside the tanks practically all day except for the noon hour and that two to four men would be working on a tank at the same time, hammering continuously. The workers were subjected to a magnification of the noise of the operation by reason of their working on the inside of the tank. Usually other workers would be working and hammering on another tank within six feet of the one on which plaintiff was working. Metal finishers also working in this general area used disk grinders and polishers which made a loud high-pitched noise. Whenever a run was necessary for a particular part, there was noise from punch presses in the same department. The room was not acoustically treated. The conditions under which the claimant worked were substantially the same from 1946 to the date of the hearing.
Ear defenders or ear plugs, as they were sometimes called, were made available by the company in the First Aid room and bulletins were posted urging their use because the plant nurse felt that the noise might be detrimental to their ears. There was evidence that ear plugs tend to preserve hearing but employees did not wear them because they are not able to talk to each other or to hear shouted warnings of danger. Some of the employees wore cotton in their ears but the claimant did not do so because he felt it was of no help. Since the appellants do not contend that claimant's loss of hearing did not result from the noises incidental to his employment, it will not be necessary to set out in detail the medical and other evidence.
In affirming the award of the referee, the commission made additional findings of fact and conclusions of law which, omitting parts not here essential, are as follows: '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 accident. 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 nerveendings bilaterally, caused by the noise exposure in his occupation as found above.
'We further find that the employee, Lawrence R. Marie, sustained an occupational disease arising out of and in the course of his employment with Standard Steel Works, a corporation, on or about December 1, 1952, resulting in loss of hearing in both ears which entitles said employee to compensation for permanent partial disability in the amount of $30.00 per week for 80.803 weeks.
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'We further find that the employer had notice of said occupational disease; that the employer was not prejudiced by the failure to give notice, as alleged, because there is no known medical treatment that will cure or relieve the claimant of his disability; that the claim for compensation was filed within the time prescribed by law for the reason that employee's alleged hearing loss was not reasonably discoverable or compensable until on or about December 1, 1952.
'We further find that the employer had accepted the occupational disease section of the Missouri Workmen's Compensation Law and was working under and subject to the provisions thereof. * * *.'
Essentially, the appellants' first contention is that the only occupational diseases cognizable under the Workmen's Compensation Act are those 'caused by the handling, and lodging within the body, of chemically toxic substances' mentioned and referred to in Sec. 292.310; and that the noise-induced hearing loss shown by the evidence is not an 'occupational disease' within the meaning and intent of the Workmen's Compensation Act.
Occupational diseases were expressly excluded from the coverage of the original Missouri Workmen's Compensation Act. Laws of Missouri 1925, Sec. 7, p. 380; Sec. 3305(b), RSMo 1929. The coverage was made optional by the 1931 amendment. Laws of Missouri 1931, p. 382. Subsection (b) of Sec. 3305, RSMo 1929 as amended, with the amended portion in italics, reads as follows (Laws of Missouri 1931, p. 383):
Thus by virtue of the 1931 amen...
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