State ex rel. Ohio Bell Tel. Co. v. Krise

• Decision Date: 07 May 1975
• Docket Number: No. 74-532,74-532
• Citation: 42 Ohio St.2d 247,327 N.E.2d 756,71 O.O.2d 226
• Parties: , 71 O.O.2d 226 The STATE ex rel. OHIO BELL TELEPHONE CO., Appellant, v. KRISE et al., Appellees.
• Court: Ohio Supreme Court

Page 247

42 Ohio St.2d 247

327 N.E.2d 756, 71 O.O.2d 226

The STATE ex rel. OHIO BELL TELEPHONE CO., Appellant, v. KRISE et al., Appellees.

No. 74-532.

Supreme Court of Ohio.

May 7, 1975.

Syllabus by the Court

An occupational disease is compensable under R.C. 4123.68(BB) where the following criteria exist: (1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

Forrest L. Ellars, claimant, an appellee herein, began working for appellant, Ohio Bell Telephone Company, as a telephone installer and repairman on October 24, 1955. His first assignment was in the vicinity of London, Ohio, where he had lived since birth. He continued to live in London and to work as an installer and repairman until August 16, 1965, when he was transferred to the Columbus area by Ohio Bell. From August 16, 1965, until at least April 10, 1973, Ellars lived in Franklin County. Ellars continued to work in rural areas until his transfer in 1967 to the job of 'downtown repairman,' a position that primarily involves indoor work. During his prior outdoor work, Ellars came into frequent contact with pigeon droppings and dead pigeons, the spores from which allegedly cause histoplasmosis.

Ellars began to experience difficulty with his right eye in the latter part of 1966. On February 17, 1969, Ellars filed an 'application for adjustment of claim in case of occupational disease' in order to secure an allowance of compensation for histoplasmosis of the right eye, which claim was allowed.

On June 11, 1971, Ohio Bell filed a complaint in mandamus in the Court of Common Pleas of Franklin County. That court denied the writ, finding that the commission had not abused its discretion in determining that the histoplasmosis contracted by Ellars was an occupational discase within the meaning of what is now R.C. 4123.68(BB).

Upon appeal, the Court of Appeals affirmed that judgment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Jones, Day, Reavis & Pogue, Barry L. Springel and Kathleen B. Burke, Cleveland, for appellant.

William J. Brown, Atty. Gen., Michael J. Hickey and Jack H. Cook, Columbus, for appellees members of the Industrial Commission.

Chester T. Freeman, Columbus, for appellee Forrest L. Ellars.

WILLIAM B. BROWN, Justice.

The question presented is whether the Industrial Commission abused its discretion by deciding that histoplasmosis ¹ as contracted by Forrest L Ellars is a compensable occupational disease under the Workmen's Compensation Act.

R.C. 4123.68, in pertinent part, reads:

'Every employee who is disabled because of the contraction of an occupational disease as defined in this section * * * is entitled to * * * compensation * * *.

'The following diseases shall be considered occupational diseases and compensable as such when contracted by an employee in the course of his employment in which such employee was engaged at any time within twelve months previous to the date of his disablement and due to the nature of any process described in this section.

'Schedule

'Description of disease of injury and description of process:

'* * *

'(BB) All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected to exposed outside of or away from his employment.'

Ohio Bell contends, in its sole proposition of law, that a claimant is not entitled to receive workmen's compensation benefits for a nonscheduled occupational disease if any one of the three statutory criteria is absent: (1) A disease contracted in the course of employment, (2) a disease peculiar to a particular industrial process, trade or occupation, and (3) a disease to which the claimant is not ordinarily subjected or exposed outside of or away from his employment. Inasmuch as that proposition is merely a restatement of R.C. 4123.68(BB), we must agree.

However, after finding no decision of this court which has authoritatively construed the latter two criteria, ² we view this as a matter of first impression, and, with a mind to the admonition of the General Assembly to construe in favor of compensation, ³ we direct our inquiry to the meaning of subsection (BB).

Statutes similar to R.C. 4123.68 have been examined by the courts of Connecticut, and our sister states, Michigan and Pennsylvania.

Section 5223, Connecticut General Statutes, defined a compensable occupational disease as 'a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment of such.' (Emphasis ours.) That section was construed in LeLenko v. Wilson H. Lee Co. (1942), 128 Conn. 499, 503, 24 A.2d 253, 255, as follows:

'* * * The phrase 'peculiar to the occupation,' is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations * * *.' 128 Conn. at page 504, 24 A.2d at page 256, the court explained its interpretation:

'We cannot import into the conception of occupational disease under our law the element that the disease must be a usual or generally recognized incident of the employment. Compensation under our law is not to be denied because the injury would not have occurred except for the peculiar susceptibility of the individual worker. * * * (Citations omitted.) Occupational diseases result ordinarily in incapacity in a relatively small proportion of the number of employees subjected to the risk; indeed, if this were not so, economic considerations would require an abandonment of the employment or a change in its conditions to obviate the risk. There is nothing in the terms of our statutory definition of an occupational disease which suggests that to fall within it a disease must be one which is a usual or generally recognized incident of the employment, and the considerations we have suggested preclude our finding that such a legislative intent is to be implied. * * *'

Section 417.1, Michigan Code, defined 'personal injury' to include 'a disease * * * which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. Ordinarily diseases of life to which the public is generally exposed outside of the employment shall not be compensable.' (Emphasis added.)

In allowing an award to a dishwasher who contracted tuberculosis while working in a tuberculosis sanitarium, the Supreme Court of Michigan, in Mills v. Detroit Tuberculosis Sanitarium (1948), 323 Mich. 200, 209, 35 N.W.2d 239, 242, found greatly significant '* * * that the plaintiff was exposed in his employment to the risk of contracting tuberculosis in a far greater degree and in a wholly different manner than is the public generally.' (Emphasis added.)

Again construing Section 417.1, the Michigan Supreme Court, in Underwood v. National Motor Castings Division (1951), 329 Mich. 273, 276, 45 N.W.2d 286, 287, said:

'The term 'peculiar to the occupation' is defined in Glodenis v. American Brass Co., 118 Conn. 29, 170 A. 146, 150, and quoted in Mr. Justice Reid's opinion in Samels v. Goodyear Tire & Rubber Co., 317 Mich. 149, 26 N.W.2d 742, 745, as follows:

"The phrase, 'peculiar to the occupation,' is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations.' (Italics supplied.)

'The commission found that plaintiff's work presented a substantial hazard of back injury which was far in excess of that attending employment in general * * *'

In Coombe v. Penegor (1957), 348 Mich. 635, 642, 83 N.W.2d 603, 607, the court stated that ascertaining the presence or absence of causes and conditions characteristic of and peculiar to the work being done '* * * means, as declared in our more enlightened decisions, that a claimant * * * is obligated to establish no more than that the conditions of his employment 'result in a hazard which distinguishes it in character from the general run of occupations.' * * *'

Finally, we turn to an examination of a Pennsylvania statute strikingly similar to R.C. 4123.68(BB), Section 108(n) of the Occupational Disease Act (Section 1208, Title 77, Pa.Stat.), which, in pertinent part reads:

'The term 'occupational disease,' as used in this Act, shall mean only the following diseases:

(Schedule)

'* * *

'(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population.'

Construing that section in a claim involving lung cancer resulting from exposure to asbestos, the Supreme Court of Pennsylvania, in Utter v. Asten-Hill Mfg. Co. (1973), 453 Pa. 401, 410, 309 A.2d 583, 588, said:

'The Superior Court concluded in Scott (v. United States Steel (1964), 203 Pa.Super. 459, 201 A.2d 243) that recovery under ...