Triebsch v. Athletic Min. & Smelting Co.

• Decision Date: 19 February 1951
• Docket Number: No. 4-9420,4-9420
• Citation: 237 S.W.2d 26,218 Ark. 379
• Parties: TRIEBSCH v. ATHLETIC MINING & SMELTING COMPANY et al.
• Court: Arkansas Supreme Court

Page 26

237 S.W.2d 26

218 Ark. 379

TRIEBSCH v. ATHLETIC MINING & SMELTING COMPANY et al.

No. 4-9420.

Supreme Court of Arkansas.

Feb. 19, 1951.

Rehearing Denied March 19, 1951.

Gutensohn & Ragon and Franklin Wilder, Fort Smith, for appellant.

Daily & Woods, Fort Smith, for appellees.

McFADDIN, Justice.

This is a claim by appellant against appellee for a compensation award under the Arkansas Workmen's Compensation Law. See Sec. 81-1301, et seq., Ark.Stats.

At all times herein, appellee operated a smeltery for processing zinc ore. In the plant, two furnaces were located in each of five buildings or 'blocks'. Furnaces 1 and 2 were located in Block 1, which was the most westerly block. In the smeltering process the ore was heated in the furnaces in order to remove impurities; and the fumes from the heated ore escaped through condensers along the side of the furnaces. After the 'cooking' was completed, the refined product was available for further processes of manufacturing. Each 'block' was equipped with doors on each side and end of the building; and at times doors were opened to allow ventilation in the block and to aid the removal of smoke and gaseous fumes. Temperature and weather affected the smoke and gas conditions within each block: that is to say, these conditions were worse at night than in the day-time; they were worse in cold than in warm weather; and they were worse in humid than in dry weather. The management had respirators available for the use of employees desiring them.

For about nineteen years appellant (also referred to as claimant) was employed by appellee (also referred to as employer) as a fireman of some of the said furnaces at the smelting plant. In 1944, it was discovered that claimant's breathing was impaired and the doctor diagnosed his trouble as bronchial asthma or bronchiectasis; but appellant continued to work and inhale the fumes and smoke until his collapse, shortly to be mentioned. Appellant reported for work as fireman of the furnaces in Block 1 at 10:00 P. M. on the night of January 28, 1949, and was to work until 6:00 A. M. of January 29th. In the course of his work on that night appellant collapsed and suffered a physically disabling attack, or breakdown, so that he is now totally and permanently disabled.

Appellant's claim was filed with the Workmen's Compensation Commission on May 11, 1949, and resulted in three hearings: the first was by Commissioner Caperton at Fort Smith on June 22, 1949; the second was by Commissioner Holmes at Fort Smith on December 15, 1949; and the third hearing was before the entire Commission at Little Rock on May 23, 1950.

At the first hearing, the employer sought to defeat the claim as not having been filed within the time provided by Section 14(c)(1) and Section 17 of the Workmen's Compensation Law, as found in Secs. 81-1314 and 81-1317, Ark.Stats. The Commission was correct in overruling such contention of the employer; because the evidence showed that on January 29, 1949 (the day after appellant's collapse) Mr. Dean, appellee's foreman, knew of the claimant's disability, and on February 28th told the appellant that he could not work any longer and advised him to obtain benefits under a total disability life insurance policy which appellant was carrying. Furthermore, sometime later, appellant inquired of the president of the appellee company as to Workmen's Compensation benefits. In view of the foregoing, we hold that the employer had timely knowledge of the claimant's injury; and that the provisions of Sec. 81-1317, Ark.Stats., required the overruling of the employer's motion to dismiss the claim.

Likewise, at the first hearing, the employer sought 'to require claimant to amplify his claim to state whether the claim is based upon an accidental injury or an occupational disease. * * *'. The Commission was correct in overruling this motion which was designed to make the claimant elect under what particular Section of the Workmen's Compensation Law he was seeking to recover. We have many times held that the Workmen's Compensation Law should be broadly and liberally construed; and that doubtful cases should be resolved in favor of the claimant. See Hunter v. Summerville, 205 Ark. 463, 169 S.W.2d 579; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113; Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W.2d 899; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S.W.2d 31. ¹ In the case at bar the appellant was entitled to have the facts submitted to the Commission on any provision of the Workmen's Compensation Law that would justify an award in his favor; and the technical motion to require him to 'elect' is not within the purview of that Law.

We believe that this 'election' matter was one of the major factors which caused the Commission to fail to make an award for the claimant. That the Commission at all times was thinking in terms of occupational disease--rather than accidental injury--is clearly apparent:

(1)--At the first hearing before Commissioner Caperton, we find this in the record:

'By Com'r Caperton: Q. I am going to ask a question and I don't want any objections to it because I am asking it for a purpose. Do you know, in the 19 years of your employment at the Athletic Mining and Smelting Company of any person that has suffered or has a disability as a result of breathing any of the ingredients at the smelter? A. No. I couldn't say as I do.'

(2)--Again, when a witness, who was also a fellow workman with the claimant, was testifying at the first hearing, we find this in the record:

'By Com'r Caperton: Q. Do you work pretty close to Mr. Triebsch? A. Yes sir.

'Q. Have you had any trouble breathing fumes out there? A. No sir.'

(3)--After the conclusion of the first hearing, and at the suggestion of Dr. Cull ² and the Commission, ten fellow employees of the claimant were examined to see whether any of them suffered from symptoms of an occupational disease. Likewise, the University of Arkansas was requested and did make a report on fume conditions at the employer's plant.

(4)--A great variety of medical and other expert evidence was thus accumulated and heard on the matter of occupational diseases. All sorts of hypothetical diseases were discussed in the hearings. At least eight doctors were consulted in one way or another; and the Commission's fifteen page opinion of August 25, 1950, contains statements like this: '* * * According to Mr. Robertson's testimony he had been employed as a fireman at the respondent's plant for thirty (30) years, and had worked close to the claimant during the past several years. It was also the testimony of Mr. Robertson that he had no breathing trouble * * *.'

(5)--Furthermore, Dr. Cull's various reports are quoted in the opinion of the Commission, and from these reports we notice the following excerpts:

'All in all, I can find nothing in these reports of Dr. Martin as to history and findings which one would not expect to find in a group of workmen engaged in similar occupations and in which no dust, gas or fume hazards are involved, and in which men work under conditions in which they are subjected to similar changes of temperature, drafts, etc., as, for instance, would be the case in the semi-open sheds used in many manufacturing industries.

* * *

* * *

'As a result of all these ailments, I regard Mr. Triebsch as totally and permanently disabled but do not feel that any of these ailments has resulted from his occupation or the nature of his employment.'

We have dwelt on the occupational phase in this case in considerable detail, because the Commission, on its own initiative, spent several months on the question of occupational conditions, and we are convinced that the trend of the hearing caused the Commission to base its opinion on that point. There is substantial evidence to support the Commission's finding that the claimant in this case is not suffering from an occupational disease; and the Commission's findings on that phase of the case is final. See Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600; J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82; and Tinsman Manufacturing Co. v. Sparks, 211 Ark. 554, 201 S.W.2d 573. ³

But on the accidental injury phase of the case, the uncontradicted evidence shows that the claimant suffered an accidental injury within the purview of our cases, such as: Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S.W.2d 252; McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S.W.2d 961; Sturgis Brothers v. Mays, 208 Ark. 1017, 188 S.W.2d 629; Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S.W.2d 310; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S.W.2d 31.

In Herron Lumber Co. v. Neal, supra, the worker had a gastric ulcer which reptured while he was performing a task that required extra energy. We held that the worker suffered an accidental injury within the purview of the Workmen's Compensation Law, and quoted from 71 C.J. 607: "Injury from strain or overexertion due to a physical condition predisposing the employee to injury is an injury within the terms of the various workmen's compensation acts * * *." [205 Ark. 1093, 172 S.W.2d 254.]

In McGregor & Pickett v. Arrington, supra, the worker was a carpenter. He had an impaired heart, and, in trying to move a plank, he overexerted himself and suffered a collapse and died. We allowed compensation, saying that the decedent's death resulted from an accidental injury arising out of and in the course of his employment.

In Harding Glass Co. v. Albertson, supra, the worker also had an impaired heart; and while at work suffered a heat prostration and died. In allowing compensation, we quoted from Schneider on Workmen's Compensation Text, Vol. 4, Sec. 1328, p. 543: "It may be stated generally that if the conditions of the employment, whether due to over-exertion, excessive heat, excessive inhalation of...