Van Geuder v. Com., 3848

• Decision Date: 18 June 1951
• Docket Number: No. 3848,3848
• Citation: 192 Va. 548,65 S.E.2d 565
• Parties: CARY VAN GEUDER v. COMMONWEALTH OF VIRGINIA, MEDICAL COLLEGE OF VIRGINIA, HOSPITAL DIVISION. Record
• Court: Virginia Supreme Court

Page 565

65 S.E.2d 565

192 Va. 548

CARY VAN GEUDER v. COMMONWEALTH OF VIRGINIA, MEDICAL COLLEGE OF VIRGINIA, HOSPITAL DIVISION.

Record No. 3848.

Supreme Court of Appeals of Virginia

June 18, 1951.

Robert Lewis Young, for the appellant.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham and Frederick T. Gray, Assistant Attorneys General, for the appellee.

John D. Epperly, amicus curiae.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Mrs. Van Geuder, a registered nurse, filed with the Industrial Commission a claim for compensation under the occupational disease provisions of the workmen's compensation law. She alleged that she had contracted tuberculosis out of and in the course of her employment as a nurse in the Medical College of Virginia Hospital. The hearing commissioner allowed compensation but on review the full Commission unanimously denied it on the grounds: (1) That her tuberculosis was an ordinary disease of life not compensable under section 65-42; (2) That tuberculosis was not cared for and treated in this hospital so as to render section 65-43(11) applicable to it; and (3) That her disease did not arise out of her employment.

1. The occupational disease provisions were introduced into the workmen's compensation law (now codified as sections 65-1 ff of the Code of 1950) by chapter 77, Acts, 1944, page 97, amended by chapter 244, Acts, 1948, page 480. Section 65-42 defines an occupational disease as a disease arising out of and in the course of the employment; but provides that no ordinary disease of life to which the general public is exposed outside of the employment shall be compensable, except when it follows as an incident of an occupational disease.

But section 65-43 provides that '(The) following diseases and conditions shall be deemed to be occupational diseases, and even they shall not be so considered unless they are in fact occupational within the meaning of the term occupational disease as defined in the preceding section:' then follows a schedule with fifteen numbered paragraphs, none of which lists tuberculosis by name, but paragraph (11) thereof provides as follows:

'(11) Infectious or contagious diseases contracted in the course of employment in or in immediate connection with a hospital or sanitarium in which persons suffering from such diseases are cared for and treated;'

This is the provision on which claimant bases her claim.

It is not questioned that tuberculosis is a contagious disease. We accept the finding of the Commission that it is an ordinary disease of life to which the general public is exposed. If only the provisions of section 65-42 are considered, the conclusion would be necessary that claimant's tuberculosis is not compensable since it did not follow as an incident of occupational disease. But when that section and section 65-43 are considered together, it seems fairly certain that it was not the purpose of the law to exclude from compensation every infectious or contagious disease to which the general public is exposed. If so, paragraph (11) would be a meaningless and useless provision. A construction leading to such result exposes its own weakness. That construction is to be reached, if the words used will allow, which will give effect to the underlying purpose of the law. Bagwell v. Doyle & Russell, 187 Va. 844, 855, 48 S.E. (2d) 229, 234; Mills v. Detroit Tuberculosis Sanitarium, 323 Mich. 200, 35 N.W. (2d) 239.

Reading the two sections together, we think it was intended to provide that infectious or contagious diseases, including tuberculosis, when contracted under the circumstances stated in paragraph (11), and when in fact occupational as defined in section 65-42; i.e., when arising out of and in the course of employment, as that phrase is further defined in that section, shall be compensable. The Illinois statute (Smith-Hurd Illinois Statutes Annotated, 1950, § 172.6) defines occupational diseases in terms practically identical with section 65-42, and in Stewart Warner Corp. v. Industrial Comm., 376 Ill. 141, 33 N.E. (2d) 196, in which the death of the deceased was caused by pulmonary tuberculosis, it was held that the evidence did not prove that he died of an occupational disease; but the Illinois law contains no schedule of occupational diseases like section 65-43.

2. As stated, the Commission held that tuberculosis is not 'cared for and treated' in the defendant hospital as required by said paragraph (11) as a prerequisite to liability. The facts are, as found by the Commission, that tubercular patients as such are not cared for and treated at the hospital and it has no tuberculosis ward. However, in accordance with the custom of general hospitals, it admits patients with active tuberculosis only as an emergency measure, including cases complicated by surgical diseases and pregnancy, as well as emergency cases referable to the tuberculosis itself, such as pulmonary hemorrhage or meningitis. Under that policy the hospital has some three to four such cases at all times.

It is clear that the Legislature did not intend by the enactment of the occupational disease law to provide a general system of health insurance. It provided compensation only for occupational diseases and carefully spelled out what was required to fill that description. It provided that no ordinary disease of life to which the general public is exposed outside of the employment shall be compensable. Certain named diseases were made compensable but only if they arose out of the employment as that term is defined in the law. Certain unnamed diseases, embraced in the general description of infectious or contagious diseases were included, provided (1) they are in fact occupational as defined; (2) they were contracted in the course of employment, (3) in or immediately connected with a hospital or sanitarium, (4) in which persons suffering from such diseases are cared for and treated.

No compensation is provided for infectious or contagious diseases that do not meet those terms. If a contagious or infectious disease not specifically named in the statute is contracted in the course of employment in a factory, in a store, in a restaurant, in a garage, or any other place where men and women are employed, it is not compensable, but treated as one of the ordinary diseases of life to which the general public is exposed outside of that employment. Thus the broad provision of section 65-42 that no ordinary disease of life shall be compensable is qualified and an exception made with respect to infectious or contagious diseases if, but only if, they meet the four requirements stated above.

Among those requirements are that the disease must be contracted in a hospital or sanitarium, and that hospital or sanitarium must be one in which persons suffering from that disease are cared for and treated. In its context we think that means a hospital or sanitarium in which persons suffering from such disease are cared for and treated as a general practice, or as a business; not one that cares for and treats that disease only in an emergency; not one that would decline to admit one suffering from that disease if he came to be treated only for that disease.

It is in evidence that from .2% to .3% of the general population have active tuberculosis, and from 1% to 2% have tubercular lesions. It is further in evidence that X-ray surveys of all hospital admissions have revealed that from .5% to 1% have active tuberculosis that is unsuspected. If this be true, then practically all hospitals have admitted, or will admit, patients from whom tuberculosis may be contracted. If it had been the purpose of the Legislature to provide compensation for all personnel of all hospitals who contracted tuberculosis or other contagious diseases in the course of their employment therein, paragraph (11) should have read 'infectious or contagious diseases contracted in the course of employment in or in immediate connection with a hospital or sanitarium.' Instead, the Legislature specified a particular kind of hospital or sanitarium, one 'in which persons suffering from such diseases are cared for and treated.' Unless that qualifying phrase was meant to limit the hospitals and sanitariums in which the disease is contracted to those which make a business or a practice of both caring for and treating persons suffering from the particular infectious or contagious disease in question, then it does not mean anything.

'While the provisions of the Workmen's Compensation Act are to be liberally construed in favor of the workman, liberality of construction does not authorize the amendment, alteration, or extension of its provisions. It does not go to the extent of requiring that every claim asserted should be allowed.' Humphries v. Newport News Shipbuilding, etc., Co., 183 Va. 466, 479, 32 S.E. (2d) 689, 695.

There is a statement in the evidence to the effect that statistics do not bear out completely the idea that the personnel in a tuberculosis sanatorium suffer a much greater exposure to tuberculosis and have a much higher incidence of disease than is the case with the personnel in general hospitals, due probably to instruction in isolation and more careful technique. However, if it is desirable to extend the provisions of the act to all hospitals, or even other places of work, where contagious diseases may be contracted as a result of working there, that is the business of the Legislature. We must take the statute as we find it, gather the legislative intent from the words used and give effect to the purposes thus ascertained. We cannot use the office of constrution to broaden the intended scope of the statute or change its meaning by refusing to give effect to what is written.

We agree with the Commission that the defendant is not a hospital in which tuberculosis is cared for and treated in the sense in which that phrase is used in section 65-43(11).

3. While this conclusion makes...