Phelps Dodge Corporation v. ford, 5103

• Decision Date: 07 March 1949
• Docket Number: 5103
• Parties: PHELPS DODGE CORPORATION v. FORD et al
• Court: Arizona Supreme Court

203 P.2d 633

68 Ariz. 190

PHELPS DODGE CORPORATION v. FORD et al

No. 5103

Supreme Court of Arizona

March 7, 1949

Appeal from Award of Industrial Commission.

Proceeding under the Occupational Disease Disability Law, by Thomas Ford, claimant, opposed by the Phelps Dodge Corporation employer. To review an award of the Industrial Commission in favor of the claimant, the employer brings certiorari.

Reversed.

Evans Hull, Kitchel & Jenckes and Denison Kitchel, all of Phoenix for petitioner.

H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix, of counsel), for respondents.

Stanford, Justice. LaPrade, C. J., and Udall, Phelps, and DeConcini, JJ., concur.

OPINION

Stanford, Justice.

Respondent Thomas Ford filed claim on November 18, 1947, for compensation under the Arizona Occupational Disease Disability Law, and the latter part of that year the Industrial Commission issued its findings and award granting to Ford compensation for total disability due to silicosis. On January 15, 1948, the employer, Phelps Dodge Corporation, hereinafter termed the petitioner, filed its application for rehearing protesting such findings and award. It was stipulated that the following agreed statement of facts was in effect a rehearing, and that the Industrial Commission should accept the statements as evidence in the case.

"Agreed Statement of Facts.

"1. Applicant was employed by defendant employer or its predecessors for a period of approximately 40 years, commencing in August, 1907, and ending in June, 1947. For the first 12 years of that period applicant was employed by defendant employer and its predecessors in general mining work underground.

"2. In April, 1919, applicant was told by a member of the medical staff of defendant employer to take a job on the surface because of having silicosis. From April, 1919, until June 15, 1947, applicant was employed by defendant employer as a watchman on the surface of defendant employer's mining properties in and around Bisbee, Arizona. During said period of approximately 28 years applicant's duties as a surface watchman consisted of the following:

"(a) Acting as a watchman at the surface yard gates of the Junction, Campbell, Cole, and Sacramento shafts.

"(b) Acting as attendant in the changerooms located in the surface yards of the Junction, Campbell, Cole, and Sacramento shafts.

"(c) Acting as fireman at defendant employer's heating plant located in the Phelps Dodge Mercantile Company store on the surface in Bisbee, Arizona.

"3. At no time during the period, April 1919 to June 15, 1947, was applicant employed underground."

On March 30, 1948, the Industrial Commission issued a supplemental award and an order affirming previous findings and award. Thereafter petitioner obtained from this court a writ of certiorari which brings this action before us.

Petitioner submits the following assignments of error:

"I. The Commission erred in its Finding 9 (Rec. 5) to the effect that Ford was exposed to harmful quantities of silicon dioxide dust during the entire period of his employment by Petitioner for the reason that such finding is not supported by any evidence (Proposition, infra).

"II. The Commission erred in its Finding 10 (Rec. 5) to the effect that during the ten years immediately preceding his disablement Ford was exposed to harmful quantities of silicon dioxide dust for a period of not less than 1200 shifts in Arizona for the reason that such finding is not supported by any evidence (Proposition, infra).

"III. The Commission erred in its Finding 11 (Rec. 5) to the effect that Ford was last exposed to harmful quantities of silicon dioxide dust during a period of 60 days or more while employed by Petitioner for the reason that such finding is not supported by any evidence. (Proposition, infra.)

"IV. The Commission erred in its Findings 12 through 14 (Rec. 5) to the effect that Thomas Ford is entitled to compensation, medical benefits, and funeral expenses for the reason that such findings are conclusions of law which are not supported by valid findings of fact based upon evidence. (Proposition, infra.)

"V. The Commission erred in making the award of compensation, medical benefits, and funeral expenses (Rec. 5) for the reason that such award is not supported by valid findings of fact based upon evidence. (Proposition, infra).

"VI. The Commission erred in its Finding 2 of the 'Order Affirming Previous Findings and Award' (Rec. 11) to the effect that Ford suffered an occupational disease under the provisions of the Arizona Occupational Disease Disability Law and is entitled to compensation for the reason that such finding is a conclusion of law which is not supported by valid findings of fact based on the evidence."

Our legislature in 1943, chapter 26, enacted the Arizona Occupational Disease Disability Law. Sections of the law presently necessary to aid in determining liability in this case are:

"56-1213. Employer liability for compensation. -- (a) There is imposed upon every employer a liability for the payment of compensation to every employee who shall not have rejected the provisions of this act as herein provided and who becomes totally disabled by reason of an occupational disease arising out of his employment, subject to the following conditions:

"1. No compensation shall be paid when the last day of injurious exposure of the employee to the hazards of said occupational diseases shall have occurred prior to the passage of this act.

"2. * * *

"3. No compensation shall be paid in case of silicosis or asbestosis unless during the ten (10) years immediately preceding the disablement the injured employee shall have been exposed to harmful quantities of silicon dioxide (SiO[2]) dust or asbestos dust for a total period of not less than one thousand two hundred (1,200) work shifts in employment in this state and unless total disability results within two (2) years from the last day upon which the employee actually worked for the employer against whom the compensation is claimed.

* * *

"(c) Proof of the exposure to silicon dioxide (SiO[2]) dust or asbestos dust for a total period of not less than one thousand two hundred (1,200) shifts in employment in this state, with proof of total disability from silicosis or asbestosis, shall be prima facie evidence of exposure to harmful quantities of such dust during all of said period."

"56-1214. Last employer liable-Exception. -- Where compensation is payable for an occupational disease the only employer liable shall be the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, provided that in the case of silicosis or asbestosis the only employer liable shall be the employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (SiO[2]) dust during a period of sixty (60) days or more."

"56-1235. Occupational diseases-Proximate causation. -- The occupational diseases hereinafter defined shall be deemed to arise out of the employment, only if there is a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after it contraction must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence."

In order for claimant Ford to prevail he must establish by competent evidence: (1) That as an incident of his employment he was exposed to harmful quantities of silicon dioxide dust during the ten years immediately preceding his disablement for a total period of not less than 1200 work shifts in employment in this state; (2) That said exposure was harmful to him; (3) That such total disability occurred within two years from the last day the claimant worked for the employer against whom compensation is claimed; (4) that he was exposed to such harmful quantities of silicon dioxide dust for a period of at least 60 days while in said employment; (5) That such total disablement was proximately caused by exposure to which others would not have been equally exposed outside of the employment in which he was engaged; (6) That he was exposed to such silicon dioxide dust at least one day subsequent to the effective date of the occupational disease law, July 1, 1943. All of the material facts necessary to entitle claimant to an award in this case have been admitted by petitioner except that petitioner denies that there is sufficient competent evidence in the record to establish the fact that claimant had been exposed to harmful quantities of silicon dioxide dust since the effective date of the occupational disease law, i. e., since July 1, 1943.

On March 6, 1943, there became effective chapter 25, Session Laws of 1943, relating to the ventilation of mines and the prevention of hazardous dust conditions therein. Section 1 thereof reads:

"Section 1. Definition of Terms. As used herein 'a hazardous dust condition' shall be...