National Zinc Co. v. Campbell

• Decision Date: 18 March 1969
• Docket Number: No. 43013,43013
• Citation: National Zinc Co. v. Campbell, 451 P.2d 941 (Okla. 1969)
• Parties: NATIONAL ZINC COMPANY, a corporation and Hartford Accident & Indemnity Co., Petitioners, v. Carl W. CAMPBELL and State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 941

451 P.2d 941

NATIONAL ZINC COMPANY, a corporation and Hartford Accident &amp Indemnity Co., Petitioners, v. Carl W. CAMPBELL and State Industrial Court, Respondents.

No. 43013.

Supreme Court of Oklahoma.

March 18, 1969.

Rehearing Denied April 15, 1969.

Syllabus by the Court

A disability resulting from exposure to poisons designated in the Workmen's Compensation Law as compensation justified entry of an award therefor in favor of claimant.

Proceeding for Review of an Order of State Industrial Court; A. R. Swank, Jr., Trial Judge.

Original proceeding for review of an order of the State Industrial Court awarding total permanent compensation benefits to claimant. Award Sustained.

Covington, Gibbon & Poe, A. M. Covington, Tulsa, for petitioners.

Howard C. Triggs, Oklahoma City, G. T. Blankenship, Atty. Gen. of the State of Oklahoma, for respondents.

WILLIAMS, Justice.

Under review is an award entered by the State Industrial Court allowing respondent, claimant below, compensation under the provisions of the Workmen's Compensation Law 85 O.S.1961, § 1, et seq. The parties will be referred to herein as they appeared before the State Industrial Court.

Claimant, age 60, had been employed by respondent National Zinc Company for approximately thirty years prior to August 23, 1967. On this latter date, he became seriously ill and was hospitalized. At the time of this hospitalization, he was found to be suffering from numerous ailments and illnesses, one of which was pulmonary emphysema and pulmonary fibrosis. Thereafter, he filed his claim for compensation with the Industrial Court stating that he had an occupational disease the nature of which was pulmonary emphysema, silicosis and pulmonary fibrosis.

Claimant testified below that for the last several years of his sevice with respondent employer he had been employed as a tile maker. In this capacity, claimant operated a mixer in which clay powder and silica dust were mixed with water and then formed into containers and 'retorts' which were used in employer's smelter. Claimant stated that some of the material used in making these containers and retorts was obtained from the grinding of used containers and retorts which contained particles of zinc and lead. The machine used in this grinding process was within approximately twenty-five feet of where claimant worked, and he stated that during the grinding operation the area was very dusty, often to the point of restricting visibility and requiring the employees to leave the area.

Claimant further testified that he first noticed difficulty in breathing some four months prior to his becoming seriously ill in August, 1967, although until this latter date he had not lost and great amount of working time as a result of such condition.

Claimant offered the written report of Dr. B wherein the physician stated that claimant was suffering from pulmonary emphysema and pulmonary fibrosis, which condition, in his opinion, '* * * was aggravated, accelerated and probably precipitated by (claimant's) exposure to the dust and fumes at the National Zinc plant.' Dr. B further stated that in his opinion claimant was 100% Permanently disabled as a result of the pulmonary emphysema and pulmonary fibrosis.

Respondents offered into evidence the written report of Dr. D. Dr. D found that claimant had pulmonary emphysema and arteriosclerotic heart disease, and stated that '(T)hese are diseases due to natural causes--not caused by injury.' However, Dr. D did state that he did '* * * not know if his occupation with National Zinc Company is a contributing factor to his lung disease.' Dr. D expressed his opinion that claimant was unable to work and that it was improbable he would...