Texas Emp. Ins. Ass'n v. Murphy

• Decision Date: 03 January 1974
• Docket Number: No. 16193,16193
• Citation: 506 S.W.2d 312
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Howard R. MURPHY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 312

506 S.W.2d 312

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v.Howard R. MURPHY, Appellee.

No. 16193.

Court of Civil Appeals of Texas Houston (1st Dist.).

Jan. 3, 1974.

Rehearing Denied Feb. 28, 1974.

Fulbright, Crooker & Jaworski, Russell H. McMains, Thomas P. Sartwelle, Houston, for appellant.

Tom Edwards, Ernest H. Cannon, Houston, Kronzer, Abraham & Watkins, Houston, of counsel, for appellee.

COLEMAN, Chief Justice.

This is a Workmen's Compensation case.The principal issue is whether repeated inhalation of lead and zinc fumes accompanying the burning of galvanized iron over a three day period, which resulted in disability, is an industrial accident compensable under the Act.

The case was tried to a jury, which found that the plaintiff(1) sustained injuries 'on or about July 1, 2 and 3, 1970, in the course of his employment,'(2) that such injuries were the result of an accident (defined as being an undesigned or unexpected occurrence, traceable to a definite time and place), (3) that such accidental injuries were a producing cause of partial incapacity, (4) which was permanent and (5) began on July 4, 1970.The jury found that the plaintiff's incapacity was not solely caused by preexisting conditions of his body.The trial court entered a judgment for the plaintiff and this appeal resulted.We affirm.

The defendant vigorously asserts that there is no evidence that the plaintiff suffered an 'accidental injury' which was the producing cause of partial incapacity.We must review of record to determine whether there is any evidence of probative force raising the issue.We consider only the evidence favorable to the jury verdict.

The plaintiff was the foreman on a job that called for a lot of burning and welding.They were working on galvanized iron.When burning or welding galvanized iron, fumes containing lead and zinc are produced.These fumes have a jury light color and are hard to see.If the metal has a very heavy coat of galvanizing, the fumes have an odor, but if the coating is light, there is no discernable odor.As foreman the plaintiff did not do the actual welding, he would go from man to man explaining what he wanted done.He might be with each man from five to ten minutes.The welding was being performed outside, but there was no wind.There was testimony that the 'smoke off the galvanizing' sometimes gives one an 'unusual reaction' and that it is 'the kind of thing that can slip up on a person.'Breathing the fumes makes one sick at his stomach.Milk is kept on the job for use as an antidote.It may cause fever and aching bones.

Mr. Hancock, a welder on this job, testified that he had been an iron worker for fourteen years and that he had gotten sick from the fumes two or three times.He said that you couldn't smell the fumes, but that 'you can taste it sometimes in your mouth.After you have done is three or four hours you will know you have been doing it.'

The plaintiff testified that while he was working on July 1, 1970, he breathed some of the fumes and it made him sick.About ten o'clock he became sicker and drank some milk, which he vomited.He was sick at his stomach the rest of the day and couldn't eat his lunch, supper, or breakfast the next morning.He got 'some more of it, pretty bad, around eleven o'clock' the next morning.He vomited off and on.'The next morning, the same thing.'He was unable to retain food from Wednesday morning to the following Sunday, when he was in the hospital.He did not know he had gotten into the fumes before he got sick.It was unexpected.He had gotten a slight touch one time about a month before.He had been an iron worker for thirty years.There were nine men working in the crew.One other man got sick.He told the men he was sick, and reported it to his superintendent.

Prior to July 1, 1970, he had no problem doing his job.He had no problem with shortness of breath.When he got out of the hospital he went back to work, but he was not able to do the work.He has had problems with shortness of breath from that time, and it is getting worse.It never got better, and it started after he breathed those fumes.The plaintiff's testimony was corroborated in many details by the testimony of two of the men working with him at the time.

In 1968 and on one other occasion he had been troubled with shortness of breath.On those occasions he was treated with medications and his trouble with shortness of breath went away.He was told that he had a mild case of emphysema.After he was released by his doctor he continued to work under difficulty for several months.Finally he retired at age fifty-seven because he'could not perform the work any more from my shortness of breath.'

Dr. Leonard R. Robbins, a specialist in internal medicine, was called as a witness by the plaintiff.He first examined the plaintiff on May 31, 1972.He found that plaintiff had chronic emphysema and bronchitis of long standing.In answer to a hypothetical question he testified that these conditions were aggravated by the fumes he inhaled on July 1, 2 and 3, 1970, and the resulting chemical pneumonia.Pneumonia is a reaction on the part of the lungs to some agent that causes the lungs to become inflamed.This results in the lungs becoming filled with cells fighting the agent causing the inflammation.A healing process ensues resulting in some scarring.Pneumonia normally is caused by bacteria, but chemicals can cause the inflammation and set up a similar reaction on the part of the body to a foreign substance.The condition of chronic emphysema and bronchitis was made worse by breathing in the chemicals and the resulting pneumonia.The condition of his lungs could be disabling and is not solely caused by emphysema.Emphysema is a condition in which there is a loss of the effectiveness of the space in the lungs.The lungs are made up of small air sacs, each one enabling the blood to take up oxygen and give up carbon dioxide.The process of emphysema is the destruction of the sacs.The holes that separate them become larger and as a result air gets in and out less efficiently.The air has less opportunity to come in contact with the blood.Chronic bronchitis damages the bronchi or air passages that lead to the sacs.If the bronchi become scarred, they become less effective.They become narrow and the muscles surrounding them become tight and restrict the amount of air flow.The normal function of the bronchi is to bring air into the lungs and to get out secretion.This function is impaired by scarring.Chemical pneumonia, leaving a residual scarring impairs the lungs to some extent.In a person having emphysema and bronchitis, this impairment and resultant loss of function in the lungs is much more significant than in a person having normal lungs.Mr. Murphy's exposure to the lead and zinc fumes on the occasion in question was a producing cause of the condition he diagnosed.It is his opinion that Mr. Murphy is unable to perform the usual tasks of a workman.Based on the history, and the fact that he was able to work prior to July, 1970, in spite of his emphysema, he would assume that the disability occurred in July, 1970, or several months thereafter.The condition is permanent.He considered the lung condition disabling without regard to Mr. Murphy's other trouble.Murphy's episodes of heart racing and sweating can be explained by pulmonary insufficiency.

The doctor further testified that classic lead poisoning manifests itself in the liver and would weaken one very gradually.In this casewe are talking about a case where there is acute irritation, bronchitis and emphysema because of the inhaling of fumes....