Murch-Jarvis Company, Inc. v. Townsend

• Decision Date: 25 March 1946
• Docket Number: 4-7864
• Parties: Murch-Jarvis Company, Inc., v. Townsend
• Court: Arkansas Supreme Court

193 S.W.2d 310

209 Ark. 956

Murch-Jarvis Company, Inc., v. Townsend

No. 4-7864

Supreme Court of Arkansas

March 25, 1946

Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge.

Affirmed.

Hill Fitzhugh & Brizzolara, for appellant.

R B. Chastain, for appellee.

OPINION

Millwee J.

This is an appeal from the judgment of the Sebastian circuit court affirming an award made by the Workmen's Compensation Commission in favor of appellee, Robert A. Townsend, for temporary, total disability suffered by appellee in June, 1944, while engaged in the employ of appellant, Murch-Jarvis Co., Inc., in Fort Smith, Arkansas.

Appellee began work for the company in November, 1943, as a labor foreman in construction work. In April or May, 1944, he was assigned the duty of making an excavation in a room of a zinc smelter for the purpose of installing a tank. There were two or three belts running through the room for the purpose of conveying ore from the room where it was dried to the mixing room. These belts were constantly in operation during a period of six to eight days when appellee's work was confined exclusively to the room, resulting in his exposure to and inhalation of dust which was carried into the room by the conveyor belts. At the same time, appellee and other employees were exposed to sulphur fumes which came from the mixing room. Another employee who worked in the room with appellee for four hours refused to continue because of these conditions and was assigned to another job.

Appellee developed a cough and irritation in his throat and bronchial tubes while working in the smelter room. He was first treated by his family physician, Dr. Eberle, in May and was referred by his employer and the commission to other doctors for examination and treatment. These doctors either reported their findings to the commission or testified in the case. In June, 1944, after his condition grew progressively worse, appellee became unable to work and filed his claim for disability compensation. The insurance carrier made payments of $ 20 per week for nine weeks and until August 22, 1944, when such payments were discontinued.

On January 26, 1945, the employer and insurance carrier filed their notice of intention to controvert appellee's right to further compensation in which they denied that appellee had received any injury, and alleged that if he received any injury or incurred any disease, he had long since recovered therefrom.

A hearing before the referee on January 31, 1945, resulted in an award for total and temporary disability, and appellants were required to resume disability payments at the rate of $ 20 per week from August 22, 1944. Trial before the full commission resulted in a similar award which was affirmed by the circuit court on appeal.

The commission made an exhaustive and detailed statement of the facts which do not seem to be seriously disputed. The report of Dr. Kellum, dated June 19, 1944, contained findings as to appellee's condition as follows: "Irritate bronchitis caused from dust and sulphur fumes. (Nose and throat are almost normal -- no cold. I am of the opinion that dust and sulphur fumes are the cause of his present complaint.)" The report of Dr. A. A. Blair is dated September 5, 1944, and states that appellee was able to resume work on August 22, 1944. It was evidently on the basis of this report that weekly compensation payments were terminated by appellants. The report described the condition of appellee as bronchial asthma and continues, "Patient discharged for work, but was advised not to go back to dust and smoke of previous work as this is thought to aggravate his condition."

Dr. Charles T. Chamberlain, who examined appellee at the request of the insurance carrier, diagnosed his condition in part as follows: "Chronic Sinusitis; Chronic bronchitis; arterial hypertension; chronic vascular rephritis. . . . In our opinion, the cause of this patient's condition cannot be reasonably held to be the alleged exposure to the dust and fumes which he encountered during the course of his employment in June, 1944. It is true, however, that irritating dust particles and chemical fumes could have served as aggravating factors. . . ."

By agreement of the parties, appellee was referred by the commission to Dr. A. F. Hoge for examination on March 9, 1945. The doctor's report reveals a thorough examination and case history from which the following conclusions were reached: "Mr. Townsend is suffering from bronchial asthma with associated bronchitis, hypertension and hypertensive heart disease.

"Reference is made to bronchial asthma and bronchitis which is the immediate disabling factor in this case. It is noted that this man enjoyed good health and does not give a history of having had any attacks prior to employment with the smelter plant. Assuming this statement to be correct, it is reasonable to infer that the exposure to dust incident to his occupation in the smelter was the exciting cause of the bronchial asthma and associated bronchitis.

"Assuming this, if it were shown that the man was subject to asthmatic attacks prior to his employment at the smelter plant, it is reasonable to assume that the exposure to the dust aggravated the condition. It is common knowledge that many asthmatics or people who develop chronic bronchial asthma may continue to have asthma long after the original exciting cause has been eliminated. . . . It may continue indefinitely even though no further exposure to the original exciting cause takes place."

A supplemental report of May 10, 1945, by Dr. Hoge states that appellee did not have silicosis or asbestosis.

It will be noted that there is some conflict in the medical testimony as to whether appellee's employment and exposure to the dust and fumes actually caused the bronchial trouble, or aggravated a pre-existing diseased condition which resulted in disability. The commission apparently adopted the opinion of Dr. Chamberlain and found that appellee suffered an accidental injury by reason of inhalation of dust and fumes in the course of his employment, which injury aggravated a pre-existing condition and resulted in total, but temporary, disablement. Appellants do not dispute the findings of the commission that there was an aggravation of a pre-existing disease, but do urgently insist that appellee did not suffer an accidental injury within the meaning of the Workmen's Compensation Law.

Our act (Act No. 319 of 1939) provides that "injury" and "permanent injury" shall mean: "accidental injury or death arising out of and in the course of employment, and such occupational disease or occupational infection as arises naturally out of such employment or as naturally and unavoidably results from...