Swink v. Carolina Asbestos Co.
| Decision Date | 15 June 1936 |
| Docket Number | 5501. |
| Citation | 186 S.E. 258,210 N.C. 303 |
| Parties | SWINK v. CAROLINA ASBESTOS CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Felix E. Alley Judge.
Proceeding under the Workmen's Compensation Act by Press Swink claimant, opposed by the Carolina Asbestos Company, employer and the Maryland Casualty Company and others, insurance carriers. The superior court reversed an award of the Industrial Commission which denied compensation, and the employer and the named insurance carrier appeal.
Reversed and remanded.
Where commission found that asbestos company's employee was suffering from pulmonary asbestosis arising out of and in course of employment, further finding that such disease was not caused by accident held supported by evidence, and hence superior court should have affirmed denial of compensation notwithstanding commission found that company was negligent in not installing dust removal system (Pub.Laws 1929, c. 120, §§ 2(f), 60).
This is a proceeding for compensation under the provisions of the North Carolina Workmen's Compensation Act (Pub.Laws 1929, c. 120, as amended), for an injury suffered by the claimant, Press Swink, while he was employed by the defendant, Carolina Asbestos Company, at its plant at Davidson, N.C. The other defendants were insurance carriers for the defendant, Carolina Asbestos Company, from time to time, while the claimant was in its employment.
The proceeding was begun before the North Carolina Industrial Commission, and was first heard by Commissioner Dorsett, who, on his finding that the claimant "did not sustain an injury by accident which arose out of and in the course of his employ-ployment," denied compensation.
On claimant's appeal from the award of Commissioner Dorsett, the full commission heard the proceeding, found the facts, and, in accordance with its conclusions of law, affirmed the award of Commissioner Dorsett, denying compensation.
The facts found by the full commission, as set out in the record, are as follows:
"1. Both the claimant, Press Swink, as employee, and the defendant, Carolina Asbestos Company, as employer, are subject to the provisions of the North Carolina Workmen's Compensation Act, the defendant having in its employment more than five employees who were engaged in the same work as that in which the claimant was engaged, within the State of Carolina. Both had voluntarily accepted the provisions of said Act. The average weekly wage of the claimant was $16.86.
2. The defendant, Maryland Casualty Company, was the insurance carrier for the defendant employer from 1 July, 1929, up to and including 9 July, 1934.
The defendant, United States Casualty Company, was the insurance carrier for the defendant employer from 10 July, 1934, up to and including 1 August, 1934.
The defendant, Lumber Mutual Casualty Company, was the insurance carrier for the defendant employer from 1 August, 1934, up to and including the date of the hearing of this proceeding.
3. At the instance of the insurance carrier on the risk of the defendant employer at that date, on 23 August, 1934, the defendant employer caused a physical examination of the claimant to be made. As the result of this examination and because of his physical condition as disclosed thereby, the claimant was discharged from its employment by the defendant employer on 25 October, 1934. The claimant had been in the employment of the defendant employer for six or seven years prior to the date of his discharge. During that time he had worked continuously and had earned and received his wages regularly. He had lost no time or wages on account of the disease with which the examination showed he was suffering at the time of his discharge, except that for one week about a year before his discharge he was unable to work, complaining at that time of the same symptoms as those of which he is now complaining.
At the time claimant entered the employment of the defendant, Carolina Asbestos Company, at its plant at Davidson, N. C., he was in good health. He had been employed prior to that time in a cotton mill at Newton, N.C. At the time of his discharge, he was suffering from a disease which is medically defined as pulmonary asbestosis. He was then about 36 years of age. His condition as shown by an X-ray examination made on 26 November, 1934, was as follows:
He was suffering from shortness of breath, weakness and coughing, without raising sputum to a great amount. He complained of weak spells. His weight ten or twelve years ago was 172 pounds; it is now 157 pounds. He first began to notice his condition between one and two years prior to the date of the hearing of the proceeding. He was unable to chop wood, except for a few minutes, without exhaustion.
The physical examination showed that his chest expansion was poor, but was more limited at both bases. Fine, dry cracklings or rattles were heard throughout both lungs, at both bases. The lower two-thirds showed slight dullness to percussion at both bases, but there were no murmurs. The rate was 94. The heart was slightly enlarged to percussion. He had a rather marked clubbing of his fingers. There was no evidence of tuberculosis. The X-ray examination indicated a fibrosis that existed throughout both chests. The fibrosis was medically defined as a proliferation of certain tissue in response to irritation or stimulation from chemical irritants or mechanical irritation. The fibrosis found in claimant's chest was diffused, generalized and on both sides, but most marked at the lower half of the chest, in the right and left lobar area. The lung has three lobes, one on the right side and two on the left side. The shadows indicated on the X-ray were described in the medical testimony as hilum shadows, and were more than normal. The white hard bodies indicated by the shadows were called calcified lymph nodes. Claimant's chest flared in the lower segment and continued to contract in the areas in the region of the eighth and ninth ribs, and in the axillary ribs. The heart shadows from the X-ray showed a rather marked enlargement of the heart on the right side. It was slightly enlarged on the left side. The diaphragm of the claimant was high in the left dome, and was out of proportion in height as compared with its normal position. The condition found in claimant's lungs, when he was examined in November 1934, in the opinion of the medical examiners, had existed for more than a year prior to the date of the examination, and such is found to be the fact by the Commission.
4. Prior to his discharge on 25 October, 1934, the claimant had been employed by the defendant, Carolina Asbestos Company, in its plant at Davidson, N. C., for six or seven years. He had worked most of the time in the carding room in the plant. Prior to 19 December, 1933, the defendant had failed to install in its plant a dust removal system, such as was in general use in plants similar to defendant's plant. If defendant had installed and maintained in its plant such a dust removal system, during the time the claimant was in its employment, a very large per cent, but not all of the dust incident to the operation of the plant would have been removed. On 19 December, 1933, the defendant employer did install in its plant a dust removal system of the type which was in general and approved use and from the time of the installation of said dust removal system up until the date of the discharge of the claimant, the defendant employer continued to use the said dust removal system in the said plant in a manner free from fault upon its part, and in accordance with the methods for which it was designed to be used. After the installation of the dust removal system in defendant's plant on 19 December, 1933, the dust in said plant was reduced as much as 90 per cent.
5. The condition of pulmonary asbestosis found in claimant's lungs was caused by the inhalation of asbestos dust while he was working in defendant's plant, as its employee. Such condition began at the time the claimant was first employed in said plant, and continued to accumulate gradually during the years of his employment up until the date of the installation of the dust removal system by the defendant on 19 December, 1933. To what extent, if any, the said disease accumulated after 19 December, 1933, it is impossible for the Commission to determine. It is found as a fact by the Commission that in plants in which dust removal systems in general and approved use and in which such appliances are properly used, certain employees have become afflicted with asbestosis from the inhalation of asbestos dust in such plants. No dust counts were taken in the plant of the defendant at any time.
6. On 22 November, 1934, the defendant, Carolina Asbestos Company, as an employer, reported to the North Carolina Industrial Commission, that one of its employees, Press Swink, had filed a claim with the Commission under date of November, 1934, alleging that his injury was caused by the negligence of the defendant employer, in that it maintained no dust removal system in its plant, such as is approved and in general use in other asbestos plants, said notice being under date of 8 November, 1934.
On 26 November, 1934, the Industrial Commission received from the defendant, as the employer of the claimant, the report of an accident, on form No. 19, giving the name of its injured employee as Press Swink. The response to question 28, included in said form, requesting a description of the accident and a statement as to how it occurred, was as follows:
Unknown the party has filed claim with the North Carolina Industrial Commission under date of November, 1934, alleging that the accident which resulted in his injury...
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