Simpson Logging Co. v. Department of Labor and Industries
Decision Date | 31 January 1949 |
Docket Number | 30572. |
Citation | 202 P.2d 448,32 Wn.2d 472 |
Parties | SIMPSON LOGGING CO. v. DEPARTMENT OF LABOR AND INDUSTRIES et al. |
Court | Washington Supreme Court |
Proceedings under the Workmen's Compensation Law by George Burtch employee, opposed by Simpson Logging Company, employer, on a claim for an occupational disease. The joint board sustained an order of the supervisor of the Department of Labor and Industries sustaining the claim, and the employer appealed to the superior court. From the judgment which affirmed the order of the joint board, the employer appeals.
Affirmed.
Appeal from Superior Court, Grays Harbor County J. M. Phillips, judge.
Bogle Bogle & Gates and Edward S. Franklin, all of Seattle, for appellant.
F. W. Loomis, of Aberdeen, for respondent Burtch.
Smith Troy, Phil H. Gallagher, and Theodore M. Ryan, all of Olympia, for respondents.
The department of labor and industries of the state of Washington allowed the claim of George Burtch for an award for an occupational disease by order dated April 10, 1946. The Simpson Logging Company, the employer of claimant, appealed from that order to the joint board upon two grounds: (a) That the claimant was not suffering from asthma (the disease claimed) and (b) that, in any event, asthma is not a compensable occupational disease under the workmen's compensation act of Washington.
By an order dated January 3, 1947, the joint board of the department sustained the action of the supervisor in awarding compensation. The employer, Simpson Logging Company, appealed from this order to the superior court of Grays Harbor county, Washington. The case was tried to the court, which affirmed the order of the joint board.
The employer, Simpson Logging Company, appeals from that judgment to this court and raises the same questions as presented to the joint board. Here those questions can be stated as (1) Did the appellant overcome the statutory presumption as to the correctness of the facts found by the trial court affirming the joint board and the supervisor, and (2) Is a workman disabled by asthma which has arisen naturally and proximately out of his extrahazardous employment entitled to compensation under the provisions of Rem.Rev.Stat. §§ 7679-1, 7679-2 (1941 Supp.)?
The respondent Burtch entered the employ of the appellant Simpson Logging Company June 14, 1942. With the exception of two days, he worked every day that the plant operated. He alleged that he contracted asthma on or about February 1, 1946, caused by smoke in the plant. On or about December 11, 1945, he took the job of off-bearer on the taper machine. This was lighter than his previous work and is sometimes performed by women employees. The claimant was approximately sixty years of age, weighed between two hundred twenty-five and two hundred thirty-four pounds and had never been sick Before . Dust, smoke and fumes prevailed at the location of the taper machine in the plant. For the first ten or twelve days as an off-bearer he did not notice anything particularly wrong. After that his first symptoms began to appear, when he began sneezing, his throat became sore and his eyes burned. He coughed considerably and his condition got continuously worse. About two weeks Before he quit he went to see Dr. Lukins, a physician practicing in Elma, for treatment for his condition. The doctor treated him for asthma, which helped him some. When he had a coughing spell he would go outdoors and smoke an Asthmadore cigarette and take a capsule and would feel enough better to finish his shift. On February 18, 1946, he had to quit work entirely and had been unable to resume his employment at the time he testified Before the joint board on September 19, 1946. Prior to off-bearing on the taper machine, the claimant had never had any respiratory trouble.
Dr. Lukins was his attending physician. He took his history, diagnosed his trouble, treated him and testified on his behalf. He related his symptoms as being that he could hardly get his breath, had pain on the left side of the chest also some soreness of the left arm, but nothing to speak of. He had taken a history of the conditions under which he was working and diagnosed his case as a cardiac asthma condition accompanied by a heart deficiency. He did not find any organic deficiency in the heart, although the symptoms of pain in the left side of the chest and left arm are typical of heart disease. He did not make any laboratory allergy tests, but he thought the appearance of the symptoms complained of whenever he was subjected to dust and smoke was itself a test. He was still of the opinion at the time of the hearing that the asthma condition was caused by the smoke and dust in the plant where he had worked.
The appellant produced testimony to controvert the existence of smoke and dust in the plant as well as to controvert the medical testimony, but the supervisor, joint board and court believed the testimony on behalf of the respondent.
We answer the first question presented in the negative. The appellant has not overcome the presumption as to the correctness of the facts thus found by the joint board.
Appellant states its position upon its second question in this case as follows: 'Conceding, arguendo, that the testimony of Dr. Lukin was sufficiently definite to establish that the claimant was suffering from asthma, as the joint board apparently concluded, and conceding further that claimant developed his asthma because of employment conditions existing in appellant's plant, it then becomes necessary to determine whether the disease of asthma meets the requisites of a compensable occupational disease as heretofore defined by this court.'
Appellant contends that asthma is an allergy or personal sensitivity to certain substances afflicting mankind in general. It is not peculiar to the plywood industry and it attacks industrial and nonindustrial population alike and therefore cannot properly be classified as a compensable occupational disease. It takes the position that:
'The test of a compensable occupational disease applied by the Washington court is in accord with the almost unbrokenline of decisions from other states holding that regardless of the statutory provisions of occupational disease legislation, an occupational disease is one contracted in the usual and ordinary course of events, which, from common experience, is known to be incident to a particular employment or which is normally peculiar to and gradually caused by an occupation, or which is due wholly to causes and conditions which are normal and constantly present and characteristic of a particular occupation.'
The respondent Burtch concedes that, if the definition of occupational disease as laid down in Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303, 265 P. 739 and Polson Logging Co. v. Kelly, 195 Wash. 167, 80 P.2d 412, 414, is the correct definition as applied to the instant case, he cannot prevail.
At the time the decision in the Seattle Can Co. case was handed down, there was no statute in this state which provided for compensation for occupational diseases. At that time only injuries of an accidental nature arising out of employment in an industry were compensable. The claimants in that case had become affected with what is known as benzol poisoning. The employer had built an addition to the room where the employees worked in such a way that the ventilating system had been rendered ineffective, and from the exposure to the fumes, the claimants had been poisoned. The question in the case was whether the disease was a result of an accident or was an occupational disease. The employer had defended upon the ground that claimants'...
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