Pacific States Cast Iron Pipe Co. v. Industrial Commission

• Decision Date: 16 May 1950
• Docket Number: No. 7289,7289
• Citation: 118 Utah 46,218 P.2d 970
• Parties: PACIFIC STATES CAST IRON PIPE CO. v. INDUSTRIAL COMMISSION et al.
• Court: Utah Supreme Court

Page 970

218 P.2d 970

118 Utah 46

PACIFIC STATES CAST IRON PIPE CO. v. INDUSTRIAL COMMISSION et al.

No. 7289.

Supreme Court of Utah.

May 16, 1950.

Stephens, Brayton & Lowe Salt Lake City, for plaintiff.

Clinton D. Vernon, Atty. Gen., Andrew John Brennan, Asst. Atty. Gen., Dwight L. King, Wayne L. Black, Salt Lake City for defendants.

LATIMER, Justice.

This is a proceeding in certiorari by the Pacific States Cast Iron Pipe Company to review an award by the Industrial Commission of the State of Utah to Ida D. Horrocks, and her five minor children, dependents of LeRoy D. Horrocks, deceased.

LeRoy D. Horrocks, deceased, was first employed by the plaintiff company in its plant at Ironton, Utah, in 1927. He left its employment in 1929, but returned in 1932 and worked continuously for plaintiff until January 25, 1946. From 1932 until about 1935 he was employed in the pipe cleaning department. In 1935 he was transferred to the shipping department where he worked until 1944 when he was again transferred back to the pipe cleaning department. He continued working in the latter department until January 25, 1946. His work in that department consisted of grinding pipes and this process caused the presence of silicon dioxide dust to which he was exposed. The shipping department was in the open air, but was next to the cleaning department, and on occasions, while performing duties in the shipping department, deceased had to go into the cleaning department, which further exposed him to the particles of dust.

On January 25, 1946, Horrocks suffered the first of a series of severe hemorrhages from his lungs, and as a result was forced to leave his work. Thereafter he never returned to employment. On March 6, 1946, he filed a claim with the Industrial Commission of the State of Utah for compensation for total disability resulting from silicosis. The plaintiff employer denied liability under the Occupational Disease Disability Act, U.C.A. 1943, 42-1a-1 et seq., claiming that Horrocks was not disabled because of silicosis and that, even assuming that he had contracted such disease, he had been exposed to dust only 16 months during the ten years prior to January 26, 1946, which would not bring him within the coverage of the statute. Two hearings were held on Horrock's claim, one on July 16, 1947, and the second on September 10, 1947. The long delay in setting the action down for the first hearing was largely brought about by the fact that the available evidence seemed to indicate that he was suffering from diseases other than silicosis and that he and the Commission were trying to determine the real source of his trouble. The medical reports the Commission received during this period, while somewhat conflicting, seemed to indicate that Horrocks was afflicted with only a mild type of nondisabling silicosis. The evidence produced at the first hearing (which was 16 months after the claim was filed) concerning the cause of his disability did not remove the uncertainty and doubtfulness so further clinical and medical reports and examinations were requested. In December of 1947, the Commission was informed by a physician who was considered an authority on silicosis, and who had been consulted on the case, that a further and more thorough examination had been made of Horrocks and that he was then suffering from silicosis, chronic nephritis, and hypertension. The Commission, not being satisfied as to the disabling effect of the different ailments mentioned and at the request of the deceased's counsel, requested another report from the doctor, which report was to show the estimated percentage of the disability suffered by deceased due to silicosis. On January 2, 1948, the doctor replied that approximately 25 percent of the disability suffered by Horrocks was caused by silicosis. A further examination was requested but as to who made the request for this does not appear. On January 14, 1948, Mrs. Horrocks informed deceased's attorneys that her husband had been very seriously ill and was, therefore, unable to submit to the examination suggested by the Commission. His attorneys requested that the Commission delay final disposition of the case until such time as Mr. Horrocks recuperated and was able to submit to the examination suggested by the Commission. On February 10, 1948, the applicant died. On July 16, 1948, his widow filed a claim with the Commission for death benefits for herself and minor children. There were, therefore, two separate and distinct claims pending before the Commission as we have held that the death claim of dependents is a separate and distinct cause of action from the one running to deceased for his injuries. Halling v. Industrial Commission, 71 Utah 112, 263 P. 78. This is of importance for the reason that the conditions imposed to extend the limitations period are requirements that apply to Horrock's claim and under the terms of the statute his dependents cannot obtain the benefits of the extension unless his claim has ripened into an award for or payments of compensation.

The findings of the Commission fuse and confuse both claims but those furnished us on the death claim state that 'the decedent was employed by the plaintiff during the period between 1932 and January 25, 1946; that during his employment he worked in the cleaning department where there was considerable dust due to the grinding of pipes; that on January 25, 1946, the decedent had to leave his work because he was physically unable to work; that on February 10, 1948, he died of chronic bilateral glomerulonephritis with contributory pulmonary silicosis; and that the silicosis contributed to the decedent's death to the extent of 30 percent.' Upon these findings the dependent widow was awarded hospital and medical expenses, $250.00 burial expenses and $990.00 compensation.

The plaintiff employer protests the award made by the Commission principally on the grounds that the widow's claim in the death case is barred by the provisions of Section 42-1a-13(b)(3), U.C.A. 1943, which provides as follows:

'(b) There is imposed upon every employer a liability for the payment of compensation to the dependents of every employee in cases where death results from an occupational disease, subject to the following conditions:

* * *

* * *

'(3) No compensation shall be paid for death from silicosis unless the death results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except in those cases where death results during a period of continuous total disability from silicosis for which compensation has been paid or awarded, and in such cases compensation shall be paid if such death results within five years from the last day upon which the employee actually worked for the employer against whom compensation is claimed.' (Italics added.)

There is no contention that deceased died within two years from his last day of employment so the issues are narrowed to the question of whether the facts bring the dependents of deceased within the five year provisions of the statute above quoted. The italicized portion of the above quoted section of the statute sets out two requirements for extending the period of limitation, both of which must be met before the award by the Commission can be upheld. These are necessarily established in deceased's cause, but they also become conditions precedent to the extension of the limitation period in the death case. They are: (1) a period of continuous total disability from silicosis, and (2) a payment or award of compensation for the total disability. We believe the first requirement of the statute is fulfilled although the Commission ignores the issue in its findings and decision. If this was the only irregularity in the proceedings, the matter would be referred back to the Commission for further consideration. However, our holding on the failure to meet the second requirement disposes of the action and makes a reference back to the Commission unnecessary.

The evidence to sustain our conclusion on the first requirement can be gleaned from the evidence of Drs. Richards and Orton and the documents on file in the action. This evidence compels a finding that deceased was suffering from an occupational disease at the time he left his employment or immediately thereafter; that he was suffering from ailments other than silicosis; that these were superimposed upon the latter disease which resulted in deceased being totally and permanently disabled from the time he left his employment until the time he died; that silicosis contributed twenty-five percent to this total disablement. From these facts it becomes apparent that had the Commission acted prior to Horrock's death it would have been required to find that he was totally and permanently disabled as a result of having contracted silicosis while employed by plaintiff company.

The failure to meet the second requirement is, however, fatal to Mrs. Horrocks' right to recover in her cause.

The question of whether the Commission may make an award of compensation after the death of an employee for personal injuries suffered before death has been touched on in Heiselt Construction Company et al. v. Industrial Commission of Utah, 58 Utah 59, 197 P. 589, 15 A.L.R. 799; and in Parker v. Industrial Commission et al., 87 Utah 468, 50 P.2d 278. This court, in those cases, considered the survival of workmen's compensation claims after the death of the claimant, and distinguished between 'accrued' and 'unaccrued' payments in the decisions.

In the Heiselt Construction Company case, supra, one David Murphy, an employee of the Heiselt Construction Company, froze his fingers on January 20, 1920, in the course of his employment. He was subsequently awarded medical and hospital expenses and temporary partial disability compensation. Murphy died on March 28, 1920, from causes not connected with or resulting from said...