Tintic Milling Co. v. Industrial Commission of Utah

• Decision Date: 08 April 1922
• Docket Number: 3770
• Citation: 206 P. 278,60 Utah 14
• Court: Utah Supreme Court
• Parties: TINTIC MILLING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

206 P. 278

60 Utah 14

TINTIC MILLING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 3770

Supreme Court of Utah

April 8, 1922

Writ of review by the Tintic Milling Company and another against the Industrial Commission of Utah and another.

AWARD AFFIRMED.

Bagley Fabian, Clendenin & Judd, of Salt Lake City, for plaintiffs.

H. H Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen for defendants.

THURMAN J. CORFMAN, C. J., and WEBER and GIDEON, JJ., FRICK, J concurring.

OPINION

THURMAN, J.

Clarence Snyder, an employe of plaintiff Tintic Milling Company, on the 4th day of August, 1921, filed with the defendant Commission application for an adjustment of his claim for compensation for an alleged accidental injury arising out of or in the course of his employment. After a hearing was duly and regularly had thereon the Commission entered its findings of fact and conclusions in favor of the applicant, and made its award in accordance therewith. Application for rehearing was denied, and the case brought to this court on writ of review.

The findings of fact and conclusions therefrom are as follows:

"I. That the applicant was employed by the Tintic Milling Company on the 17th day of January, 1921; that on said date he was assisting in putting in a bulkhead in the flue that carries the fumes from the roaster; that at this time the roasters were not entirely dead and were throwing off fumes; that the applicant was gassed, causing him to sustain bronchial irritation immediately after being gassed, followed by nausea and vomiting; that he became ill, continued to work, however, for several days; that by reason of being gassed the bronchial irritation kept up, and on the 5th day of March resulted in a profuse hemorrhage from the lungs; that in the month of May, 1921, the applicant had an examination made of the sputum, and the diagnosis showed active tuberculosis; that the gassing was either the direct cause of the tuberculosis or lighted up a dormant condition which existed previously, but did not incapacitate him for performing his duties as an employe.

"II. That the smoke or fumes inhaled by the applicant while he was repairing the bulkhead in the flue were offensive; that he wore a respirator and a pair of tight-fitting goggles, and when he would go to take a breath the fumes would cut it off short; that when he first tried to enter the flue the gases were so dangerous and offensive that the applicant was compelled to wait about 30 minutes before he could enter the flue and commence his work.

"III. That between January 1, 1920, and January 19, 1921, the applicant worked 356 eight-hour shifts out of a possible 384 shifts, missing only 28 shifts, but from the time he was gassed and within a few days thereafter he was unable to perform any labor whatsoever, and his condition grew worse from day to day.

"IV. That on January 17, 1921, the Tintic Milling Company had in their employ three or more workmen; that on said date the AEtna Life Insurance Company was the insurance carrier for the said Tintic Milling Company.

"V. That the wage earned by the applicant on the 17th day of January, 1921, was $ 26.25 per week, working seven days per week.

"VI. That no compensation has been paid.

"VII. That by reason of being gassed by accident the applicant was obliged to discontinue his employment on the 21st day of January, 1921, and has suffered total disability up to the 11th day of October, 1921, with probability of continuance of temporary total disability for some time to come."

"In view of the foregoing findings, the Commission concludes that the applicant on the 17th day of January, 1921, sustained an accidental injury arising out of or in the course of his employment, while regularly employed by the Tintic Milling Company at Silver City, Utah an employer subject to the provisions of the Workmen's Compensation Act; that the AEtna Life Insurance Company or the Tintic Milling Company should pay to the applicant compensation in the sum of $ 14.37 per week, beginning on the 21st day of January, 1921 (three days after the injury) and to continue the payment of said compensation as provided in the Compensation Act, all accrued payments to date to be paid to the applicant in a lump sum; also to pay for all reasonable hospital and medical attention and fees as provided in the Compensation Act."

The evidence before the Commission tended to show that on the 17th of January, 1921, and for some time previous thereto, the applicant, Clarence Snyder, was in the employment of the plaintiff Tintic Milling Company as a carpenter. On that day he, with another employe, was ordered to remove or change a bulkhead in a flue that carried the fumes from the roaster. When they first attempted to enter the flue the fumes were so strong that they could not go in, and had to wait about a half an hour. They then went in and removed the bulkhead, whereupon applicant became sick and went out and vomited. On his return he informed his companion of what had happened. He continued to work, however, for a period of three days, during which time he continued also to cough, and kept getting worse. On the fourth day after the occurrence he remained at home. He first saw Dr. Bailey on the 20th of the same month. He told the doctor where he had been working, and the doctor said the ailment was caused by the gas and fumes. Applicant did no work after that date. On the 25th of the same month he went to get his pay check and informed his employer of his condition. His employer told him to see Dr. Bailey, and have him prepare blanks for compensation. Several months prior to the occurrence of January 17th applicant had a light spell of "flu," which confined him to his bed for four days but he remained at home about a month until he regained his weight. For several years prior to the date of the alleged injury applicant had worked in and about the mines, sometimes in the plaintiff's mill on the rolls, also on the roaster, making repairs. He also worked underground in the mine part of the time and at other times was engaged in unloading and dumping coal for tramways and boilers. He commenced coughing right away after he was in the flue, and continued to cough thereafter, especially in stormy weather. He had a hemorrhage on March 5, 1920. Dr. Bailey told him it was caused by the constant coughing. His physical condition between April 20, 1920, when he had the "flu," and January 17, 1921, did not interfere with his regular employment. Applicant and his companion put on respirators when they went into the flue. If they had not done so they could not have remained in the flue at all. A very noticeable change appeared in applicant's health after the incident referred to. With the exception of the first three days thereafter, he was never able to work at his regular employment.

At the time applicant and his companion went into the flue the roasters had not died down. They were still throwing off fumes. Dr. Bailey, who attended applicant when he had the "flu" in April, 1920, and also on January 20, 1921, after the alleged accident testified it was very probable an infection of the lungs started on the 17th of January, when he breathed the fumes. He also stated, in effect, that it might have started from influenza--it might have come from no cause, or it might have come from the alleged accident, but in view of the history of the case he was inclined to attribute starting the lung trouble to the gas. He was apparently well before that. He used to be husky. From January, 1921, he went down rapidly. Dr. Bailey, at the time of the hearing, was treating applicant for tuberculosis. There was a cavity in his lungs. With active tuberculosis, the cavity could have been formed between January 17th and March 5th, when the hemorrhage occurred. The doctor, however, stated he had not seen the X-ray pictures at the time he was giving his testimony. He was quite positive the occurrence of January 17th aggravated and accelerated whatever condition may have existed before, because prior to that time he was constantly employed, and there was no break in his health.

The expert opinion of Dr. Landenberger, a witness for plaintiffs, was generally to the effect that applicant, before January 17, 1921, was afflicted with pulmonary tuberculosis, and that the alleged accident of January 21, had little or nothing to do with the injury of which he complained. He admitted, however, that the occurrence of January 17, might have aggravated or accelerated the disease, but that it was by no means the starting point. In thus stating the effect of Dr. Landenberger's testimony, together with the conclusions hereafter drawn therefrom, we assume that it is unnecessary to incumber these pages with a more elaborate statement. The court is of opinion that there is ample evidence in the record to sustain the findings of the Commission that the injury was either caused by the occurrence of January 17, or that said occurrence lighted up a dormant condition which previously existed, as found by the Commission.

But it is contended by plaintiffs that the injury in any event was not the result of an accident at all within the meaning and contemplation of the Industrial Act. As we read the record these are the questions submitted to the court for its determination. It must be conceded on the very threshold of the discussion that if Snyder's injury was due entirely to a pre-existing disease, whether such disease be occupational or otherwise, it cannot be regarded as an accidental injury, and is therefore not within the Industrial Act. The statute, Comp. Laws Utah 1917, § 3112, subd. 5, provides:

"The words 'personal injury by accident arising out of or in the course of the employment' shall include...