T. M. Crutcher Dental Depot, Inc. v. Miller

• Decision Date: 23 June 1933
• Citation: 251 Ky. 201,64 S.W.2d 466
• Parties: T. M. CRUTCHER DENTAL DEPOT, Inc., v. MILLER et al.
• Court: Kentucky Court of Appeals

64 S.W.2d 466

251 Ky. 201

T. M. CRUTCHER DENTAL DEPOT, Inc., v. MILLER et al.

Court of Appeals of Kentucky

June 23, 1933

As Modified on Denial of Rehearing November 21, 1933.

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Third Division.

Proceeding under the Workmen's Compensation Act by Marshall R Miller, claimant, opposed by the T. M. Crutcher Dental Depot Incorporated, employer. The Workmen's Compensation Board granted an award, and the employer appeals.

Affirmed.

Woodward Hamilton & Hobson and Wilbur Fields, all of Louisville, for appellant.

Harry L. Hargadon and Hargadon & McNally, all of Louisville, for appellees.

CREAL Commissioner.

On January 8, 1932, Marshall R. Miller filed his application with the Workmen's Compensation Board against the T. M. Crutcher Dental Depot, a corporation, seeking to recover compensation for permanent, total disability which he alleged resulted from disease of the heart and lungs superinduced by the inhalation of chromic acid gas.

By answer, defendant, after a general denial of the pertinent allegations of the application, by way of a second paragraph pleaded the one-year statute of limitation (Ky. St. § 4914), and by a third paragraph affirmatively alleged that plaintiff's disability, if any, was due to heart trouble not caused by the inhalation of chromic acid gas. The evidence of a great many witnesses, including a number of experts in medicine, surgery, chemistry, etc., was taken by the respective parties.

On final hearing the Compensation Board by its award adjudged that plaintiff recover of defendant the sum of $15 per week for a period of 400 weeks, with interest on past-due payments and $100 for medical and hospital bills subject to a credit of $175.

As disclosed by the record, the pertinent facts are that appellee was employed by appellant in May, 1929, and was engaged in nickle plating and polishing until the 18th day of October, 1930, when a chromium plating outfit was installed at appellant's plant. Appellee was placed in charge of it and did chromium plating until September, 1931, when, on account of impairment of health, he was forced to quit work.

The chromium plating outfit consists of an outer tank containing water which is kept during the process of plating at a temperature of about 110 Fahrenheit. Suspended in this is an inner tank in which is placed a chromic acid solution. The plating is done by causing a current of electricity to pass through the chromic acid solution from the positive pole, known as the anode, to the negative pole, known as the cathode, and in passing from one pole to the other the current carries the chromic acid in the solution and deposits it upon the article to be plated. Hydrogen gas arises from one of these poles and oxygen from the other. These gases are colorless and odorless, but it is disclosed by the evidence that in passing through the solution these gases will become charged or impregnated with other elements contained therein. The evidence shows that, while plating is being done, gases and vapors arise from the solution, and a blower is usually attached to the outfit to carry them off and to prevent their inhalation by the operator. A blower was not attached to this outfit until October 30, and there is evidence that after it was installed more or less of the gas would arise and be inhaled by the operator.

The evidence for appellee tends to establish that prior to the time he began to do the chromium plating he was a healthy, vigorous man, and had had little, if any, illness, but immediately after he started operating the plating outfit he experienced a burning sensation in the nose and throat from inhaling gases arising from the tank, and developed symptoms of a severe head cold, accompanied by nasal hemorrhages, for which he was treated by his family physician, Dr. Pectol. He did not yield to the treatment, and it was continued for several months. The doctor diagnosed his trouble as some bronchial affection. His gums and mouth became inflamed and infected, followed by loosening of the teeth. His joints became swollen, a condition which was followed by intense pains over the body. Appellee has been examined by a number of eminent physicians, and practically all of them agree that he was suffering from a heart affection known as mitral stenosis. Some testified to a tubercular condition indicated by rales and other symptoms of lung trouble. There is evidence that a small portion of the liquid contents of the chromic vat at appellant's plant was analyzed by a chemist and found to contain zinc, tin, and traces of lead, and that an analysis of Miller's urine revealed the presence of these elements. The evidence of physicians indicated that in inhaling the gases from the plating tank these metals carried with the gas found their way into the blood stream, and resulted in the disabilities from which appellee is suffering. It is practically agreed that appellee had a bad case of pyorrhea. Some of the doctors attributed this to the inhalation of the gases, however, others take a contrary view, and some gave as their positive opinion that this trouble was of long standing and existed a number of years before appellee entered the employment of appellant.

Counsel for appellant make a vigorous attack upon the competency of the evidence as to the analysis of the fluid obtained from the chromium plating vat at appellant's plant and as to the competency of the other evidence, and it appears that there is real merit in their contention. This much is admitted in a comprehensive and well-written opinion by a member of the Compensation Board found in the record however, as pointed out in that opinion there was sufficient competent evidence on which to base the conclusion that the disability of which appellee complained resulted from his inhalation of gas arising from the chromic acid tank, and on that proposition we find ourselves in agreement with the board. Wholly apart from the evidence complained of, there is competent, uncontradicted evidence that the gases arising from the chromic acid solution used in...