Shipman v. Employers Mut. Liability Ins. Co., 39178

• Decision Date: 15 February 1962
• Docket Number: 3,No. 39178,Nos. 1,2,39178,s. 1
• Citation: 125 S.E.2d 72,105 Ga.App. 487
• Parties: E. L. SHIPMAN v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 72

125 S.E.2d 72

105 Ga.App. 487

E. L. SHIPMAN v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al.

No. 39178.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 15, 1962.

Rehearing Denied March 9, 1962.

Syllabus by the Court

1. 'Accident' as used in the Workmen's Compensation Act is generally an unlooked-for mishap, an untoward event, which is not expected or designed. 'Accidental means' generally has reference to an effect which was not the natural or probable consequence of the means which produced it; which does not ordinarily follow and cannot be reasonably anticipated from the use of those means; which the actor did not intend to produce and which he cannot be charged with the design of producing. It is produced by means which were neither designed nor calculated to cause it; it is not reasonably anticipated, is unexpected and is produced by unusual combinations of fortuitous circumstances.

2. To be compensable an injury must arise out of and in the course of the employee's work and must be the result of something happening by 'accidental means,' though the act involving the accident was intentional.

3. Where, on the trial of an application for compensation for loss of hearing, under the provisions of Code § 114-406 as amended, it appeared that the claimant had sustained a loss of his hearing while working on a flight line as a mechanic and that such loss was due to his continued and repetitious exposure over a period of months to the very loud noises emanating from the operation of jet aircraft engines in close proximity to his work, a finding that he had suffered a compensable injury was authorized.

4. 'Complete loss of hearing,' as used in Code § 114-406 as amended, means the loss of industrial hearing.

Ward, Brooks & Williams, Cullen M. Ward, Atlanta, for plaintiff in error.

Smith, Swift, Currie, McGhee & Hancock, Glover McGhee, Atlanta, for defendants in error.

EBERHARDT, Judge.

E. L. Shipman applied to the State Board of Workmen's Compensation for a hearing to determine his right to compensation on account of a loss of hearing in each of his ears which he asserted had resulted from his employment as a flight-line mechanic at Lockheed Aircraft Corporation. Upon the hearing, it appeared from the evidence that claimant had been continuously employed as a flight-line mechanic with Lockheed since some time in 1953 until he was shifted to another job in August of 1959. His work had required that he work in close proximity to jet aircraft engines, which are operated intermittently for test purposes, and which while in operation produce terrific noises. While not continuous, the operation of the engines was frequent and regular, occurring each day. In January, 1959 claimant began to notice a loss of hearing. Employees of the plant were given medical checkups at fairly regular intervals, and his loss of hearing began showing up on audiometer tests made by the plant medical department. From January through June, 1959, successive tests disclosed progressive and increasing loss of hearing, which were rated by the audiometer test as being 51 per cent in the right ear and 34 per cent in the left ear by June. Medical witnesses for both the employee and the employer testified at the hearing, and they were in agreement that 'for all practical purposes' claimant had lost his hearing in the right ear, though the loss in his left ear was somewhat less; that, as to his right ear, he could not hear sound ordinarily and normally produced, as by conversations and the like, though it was possible for him to hear sound at ranges of pitch out of the usual and ordinary. Claimant's expert witness, an otologist, testified that the hearing loss was typical of 'nerve deafness due to noise trauma.' The company medical director testified that it was his opinion that claimant's hearing loss was unusually rapid 'due to a loss produced by noise.'

The insurer defended on the ground that there had been no accidental injury within the meaning of the Act, and further that even though it be found that such had occurred, it was not compensable under the provisions of Code § 114-406(r) as amended, Ga.L.1955, p. 212; 1958, p. 360.

The issue before us, then, is whether the result (here, loss of hearing) of a series of trauma (here, intermittent noises of the jet engines over a period of time) is an accidental injury, and, if so, whether it is compensable if the loss of hearing is 'for all practical purposes' complete.

We have heretofore held that 'a traumatic disease, as distinguished from an ideopathic (sic) disease, is one which is caused by physical injury and is compensable.' (Emphasis supplied.) Griggs v. Lumbermen's Mutual Cas. Co., 61 Ga.App. 448, 450, 6 S.E.2d 180, 182, aff'd 190 Ga. 277, 9 S.E.2d 84. Moreover, it is settled that a physical impact is not a necessary prerequisite to an 'injury,' the result on the employee being the test. Williams v. Maryland Cas. Co., 67 Ga.App. 649(2-3), 21 S.E.2d 478; Georgia Power Co. v. Reid, 87 Ga.App. 621, 74 S.E.2d 672; Orkin Exterminating Co. v. Wright, 92 Ga.App. 224, 88 S.E.2d 205; Ideal Mut. Ins. Co. v. Ray, 92 Ga.App. 273, 88 S.E.2d 428; 1 Larson, Workmen's Compensation Law, § 38.61 (1952). The medical testimony here indicated that each time an engine was run on the flight line a traumatic reaction occurred in claimant's ear.

In Kansas, where there is a statute substantially identical with ours in this respect, a similar situation was presented in Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P.2d 171. The employee in that case was an assistant instructor of guards at the company pistol range practice. In that employment he was subjected to hearing pistol shots on the range each working day for 18 months. His hearing failed, and he filed a common-law action against his employer to recover for his permanent loss of hearing. The company defended on the ground that plaintiff's soleremedy was under the workmen's compensation statute. The court agreed, holding, as had been established by the medical testimony, that each pistol shot had a traumatic effect upon the hearing mechanism of claimant's ears, and further holding that it was not necessary to point to the particular shot that had caused his deafness, applying the 'result on the employee' test used in Williams v. Maryland Cas. Co., 67 Ga.App. 649, 21 S.E.2d 478, supra. In the course of the opinion the court observed: 'Manifestly each pistol retort or explosion, at the time it occurred, caused some injury and contributed to the permanent injury. The proof of injury was probably as definite relative to time, place and circumstances as the nature of the case permitted. At least we think it was as definite as the particular circumstances required. The statute does not mention the word 'time' except that the injury by accident must arise in the course of the employment. It did so arise. If injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.'

More recently the Supreme Court of Tennessee had before it the case of Brown Shoe Co. v. Reed, Tenn., 350 S.W.2d 65, arising under their workmen's compensation act which, insofar as is relevant here, is identical in its terms with ours. There the claimant was employed in the operation of a machine in trimming the soles of heavy shoes. In doing that work the repeated jerking and pulling of the left hand and arm by the operation of the machine over a period of months resulted in a numbness of the fingers, loss of sensation, and atrophy. He reported this condition to the First Aid Office of his employer and afterwards sought the advice of his physician. Upon the hearing the doctor testified that the repeated jerking and pulling of the arm and the resulting repeated movement of the ulnar nerve across the end of the bone was, in effect, a separate traumatic injury to the nerve resulting in a permanent injury. The employer there defended, as here, upon the ground that there had been no accidental injury. However, the Board found to the contrary, and in affirming the award for compensation the Supreme Court said: '[I]t unquestionably appears from this proof that these repeated injuries to this nerve, no one of which resulted in disabling him, but the accumulation of which, resulted in substantial permanent disability to this arm,' and further observed, 'While it is true the employee can point to no particular date or a particular blow or jerking, or pulling in running this machine on the heavy soled shoes, which produced the injury, yet it is not necessary that the accident occur at any particular or specific time. The series of jerking or pulling or holding on this to the employee's hand produced the injury and loss which was unintended and an unexpected occurrence.' The employer urged that what had happened to the employee comes in the category of an occupational disease rather than accident, but the court rejected such contentions, as we do here.

The similarities in the instant case and in Winkelman and Brown Shoe Company are obvious. There have been similar applications of the compensation statute to like factual situations--successions of bumps, scratches, jars, etc., in other cases: E. g., Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 P. 418; Public Service Co. v. Gillespie, Okl., 321 P.2d 414; W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S.W.2d 68; Beveridge v. Indus. Comm., 175 Cal.App.2d 592, 346 P.2d 545; Kacavisti v. Sprague Electric Co., 102 N.H. 266, 155 A.2d 183; 1 Larson, Workmen's Compensation Law, § 39.40 (1952); Schneider, Workmen's Compensation (1959 Cum. Supp. Vol. 3, and Supp. Service § 1454A).

The situation is not altogether new in Georgia. There are at least two such cases in which compensation has been awarded, and we have approved. In Southern Cotton Oil...