*1 174 type surplusage nullity. small and a This would any employer,
be true because whether a new one who years had been business for less than three or an old employer appellant who in the status that now occu- pies, eligible qualify year would be under the one provision, consequently there would be no case in applicable. which the old law would be Affirmed.
Boyd Company Excelsior Fuel v. McKown. S. W. 2d 614 5-865 Opinion April delivered 2, 1956. appellant. Rose, Holland & Holland, for appellee. Kincannon & Kineannon, appellant Associate Justice. The RobiNsoN, Sam operates appellee a coal mine where the worked as a years. appellee quit miner for about 10 or 12 In 1951, compensation, work and made a claim for workmen’s contending that he is disabled because of silicosis. The hearing first was conducted Mr. C. L. Farish, Chair- Compensation man of the Workmen’s Commission, who made a the claimant contracted silicosis *2 meaning within employ of the statute while in the respondent, compensation. ap- of the and awarded On peal compensation to the full Commission, was denied by majority a of the three member Commission. Mr. longer Farish was no Chairman; but Mr. Arnold B. Sikes, who then a was member of the Commission, dis- stating opinion sented, it is his the claimant has permanently totally Grade Silicosis, and is and dis- appealed abled. The claimant to the Circuit Court and very study by there, after a careful case finding court, was reversed and Commission compensation. employer the claimant was awarded appellant is the here. finding
The Commission made a fact, follows: forty has been a miner “Claimant coal for more than years. except From about 1939 to 1951, claimant was, period years during for a of one or two World War II, employed capacity respon- in some in the coal mine of resigned employer. employment dent Claimant with respondent employer on 25, 1951, June and the reason given resignation misunderstandings some assign arose when was effort made to claimant to a lighter job involving employee. the transfer of another requested lighter Claimant had work, or a few months’ leave from the he because felt mine, worked down and day resigning a needed rest. A after two from em- respondent ployment employer with claimant went to a by doctor. This led to series of examinations various diagnose and doctors an effort treat claimant’s ail- complaining ment. was then Claimant extreme short- rapid fatigue upon ness of breath and exertion. As diagnosis early July 1951, was made by opin- the Arkansas Tuberculosis Sanatorium and the totally perma- ion and was advanced claimant emphysema. nently account at that time on disabled other examined several occasions Claimant was on Sanatorium, Tuberculosis also the Arkansas sev- Eventually the authorities. Arkan- eral other medical through Riley, Dr. D. J. Sanatorium, sas Tuberculosis CO tH t- opinion
ventured an that claimant suffered ‘Silicosis, Emphysema.’ II, Grade Advanced “Dr. Charles T. Ft. Chamberlain, Smith, Arkansas, examined claimant at least twice and concluded (claimant’s) ‘The permanent cause of his total and dis- ability pulmonary is chronic grade fibrosis and silicosis, one.’ Dr. practically Chamberlain’s same as those of Dr. Herbert C. Sweet, of Louis, St. notably Missouri. Other doctors, Dr. A. Sanders, O. of of Milwaukee, Douglass, Wisconsin, and Dr. Jesse E. City, diagnosis Webb Missouri, make a of no Douglass emphysema,’ silicosis. Dr. finds ‘severe emphysema.’ finds, Sanders ‘Possible *3 Harley “Dr. of Darnall, Ft. Smith, Arkansas, called by respondent, as a length witness testified at in though detail, and he found no silicosis as a result of emphy- examination of claimant, he did find ‘Severe sema,’ and stated on cross-examination that he could diagnosis not make a of silicosis because of the absence appearing X-ray lungs, of nodules on but that recognized some medical authorities did maike silicosis in X-ray the absence of such nodules ex- amination. Hornberger,
“Dr. E. Jr., Z. of Ft. Smith, Arkansas, testify by respondents, also called to stated that I Grade present patient Silicosis could well be in a and no nodules up X-ray Hornberger on examination. Dr. was sIíoav person per then asked: ‘Grade would not make a replied: cent disabled?’ The doctor ‘That’s a hard question Hornberger to answer.’ Dr. was next asked: ordinarily ‘Well, wouldn’t disable?’ He answered: average ‘In case it shouldn’t.’ primary question “The for decision here is whether disability or not this claimant’s derives from silicosis.” According finding to the Commission’s fact, Riley, who examined the claimant on three different oc- period eight a casions over of about months, Dr. Charles actually who Chamberlain, T. treated claimant long period a time, and Dr. Herbert Sweet, C. of St. ample opportunity Louis, Missouri, who had to examine hospital, gave positive claimant in a diagnosis while all making against silicosis. In silicosis, appears rely upon Commission testimony of Dr. A.O. Sander, Milwaukee, Wisconsin, Dr. Jesse E. Douglass, City, Harley Webb Missouri, Dr. Darnall Hornberger, and Dr. E. Z. any of Fort Smith. If there is testimony support the Commission’s finding, testimony it must be in found of the four just doctors testimony mentioned. There is no other indicating the record the claimant does have silicosis. In fact, circumstantial evidence of silicosis is very strong. disabling lungs
Silicosis ais condition of the caused by inhaling among dust of stone, sand, flint; other manifestations is the formation of fibrous tissue in the lungs. Maloy’s Dictionary. See Medical The claimant years. had worked aas miner for more than 40 Condi- appellant’s give tions mine were such as to rise to silicosis; others besides claimant had become disabled working Although from silicosis while the mine. there appellant precau- is evidence to the effect used keep tions to down dust and the mine known as a wet mine, still, there is no substantial evidence in the record that silicosis could not be contracted the mine, contrary. hut there is substantial A *4 careful examination the evidence in this case leaves permanently totally no doubt but that claimant the is and lung disabled due to a condition; to the un- disputed emphysema. he has There no is lungs substantial evidence that of the is not by caused silicosis. testimony
Now as to whether the Sander, Drs. Hornberger Douglass, Darnall and is substantial evi- dence to the effect that the claimant does not have sili- appears report signed in : There to be a the record cosis Douglass, judging report, who, from the we E. Jesse appear It does that he testi- assume is doctor. not appear it not that there was fied the case and does any opportunity The for cross-examination. record does qualifications identify him of the doctor show the not report signed, indi- manner other than as the report appellee and McKown, cated. The deals with ago developed progressive dysp- years states: “Three past years had two neoa and weakness. For lay- cough expectoration. difficulty in with some Has ing sleep. down to In 1951 had three examinations X’Bay with Films at Arkansas State Sanatorium Chest and and on examination was he had last told Silicosis Emphysema. subsequent Has had two examinations X’Bay Films and Smith, doctors in Fort with Chest Diagnosis: apparently given diagnosis. was the same Emphysem... Tuberculosis. Marked with no Silicosis or Opinion: Emphysem... which is to- man has severe This disabeiing tally permawily know that it but do not compensable. It of his is did not occur as result occupation. man’s I do not know the cause this undisputed Emphysema.” in the record evidence Douglass emphysema. silicosis will cause Dr. Emphy- “I the cause of this man’s states: do not know emphy- sema.” sema, If he does not know the cause hardly that his can be said it is caused silicosis is effect evidence. not at to how he arrived is not clear as It any op- appear to have been there does conclusion; portunity 81-1323 § Ark. Stats. for cross-examination. may provides (c) the Commission that evidence before reports be accord- which shall “include verified medical ed such evidence weight may from all of the be warranted as report Douglass’ the case.” Dr. objection required by however no statute, verified, report en- nevertheless, to it; but, was made may weight warranted from all of be titled to “such In of all of the other case.” view the evidence Douglass’ considering case, and, in the qualifications no evidence that there is shown; are not that there was made; he of the examination of the extent report opportunity cross-examine; no *5 report warrants that his it cannot be said verified, not finding not have silicosis. claimant does Milwaukee, Wiscon- Sander, Dr. A. as to O. Now, except qualifications showing to his no is There sin: that one of the local doctors Fort at Smith testified report that he Dr. knew Sander. Dr. Sander’s veri- required by opportu- fied, as statute, nor was there nity report for cross-examination. Even if his had been only weight it may verified, would be entitled such be warranted from all of the evidence in the case. When report light his entire considered of the other weight. is not entitled to much The evi- overwhelming dence is to the effect that the claimant is totally permanently disabled; real issue is emphysema by whether the is caused silicosis or some- thing report, else. to Dr. But, Sander’s there wrong is not much with the man. Dr. course, Of San- opportunity der had no to examine claimant, and mere- ly gave opinion by on information furnished others. He states: “There is no evidence of Silicosis. Possible emphysema, high grade emphysema sug- but a is not gested by appearance X-ray .” (cid:127). . The doctor says emphysema disability then does not cause un- ‘‘ less extreme, and then adds: extreme Such suggested by X-ray this man’s films.”
Next, the Commission’s deals with the testi- mony Harley of Dr. Fort Darnall, Darnall, Smith. respondent, merely called as a witness testified that X-ray shows no evidence of but silicosis, states scarring emphysema, claimant has severe and there is give in the and he could no definite reason for it. chest, The sum and of Dr. Darnall’s is to substance X-ray the effect that from an he cannot find silicosis. giving testimony upon The next doctor which the finding, Hornberger. Commission based its is Dr. E. Z. respondent, introduced on behalf of states witness, This symptoms that the has all of the claimant silicosis except he does not have an asthma- the nodules further states that G-rade Silicosis, tic chest. The doctor X-ray. examination, On direct I, is not demonstrable the doctor was asked:
‘‘ person make a one hundred would not Q. Grade percent disabled?
180 question
A. That’s a hard to answer. ordinarily Q. Well, wouldn’t disable? average A. In the case it shouldn’t. only your Q. That is the criterion of from silicosis, — experience, missing
studies and that is the nodules? right. A. That’s Silicosis could be the cause of disability what he at moment far as as the examination of the individual.” certainly Hornberger’s It cannot be said that Dr. testi- mony is substantial evidence to the effect claim- that the ant does not have In fact, silicosis. to Dr. Hornberger, X-ray, I Grade Silicosis will not show in an person and when asked whether I Grade would render a per question cent he disabled, said: “That’s a hard to answer.” pro-
There is other medical in the record, by respondent, duced that the Commission does not men- finding. X-ray tion its Dr. who an Mendelsohn, is ex- pert for the Holt-Krock Clinic, states there is no evi- pneumoconiosis, dence of tuberculosis or there but is emphysema. Although marked Dr. A. B. Martin, X-ray Holt-Krock states that does Clinic, not show sili- notwithstanding cotic nodules, and Dr. Mendelsohn’s re- port, diagnosis a Clinic made of silicosis.
Dr. W. F. Rose testified that Grade Silicosis disabling lungs and must that there be nodules diagnosis before of silicosis can be made. He does not know whether the claimant has silicosis and has not ex- say probably, amined him. All this doctor can is that reports, from the McKown is not disabled from silico- opinion report partially and his sis, based on the present. Riley, says Dr. who silicosis is apparent finding from the Commission’s It reports of Dr. A. Sander, Milwaukee, O. E. Wiscon Douglass City, sin, Missouri, Jesse Webb largely on were relied basis not have silicosis. as heretofore But, claimant does reports pointed these ofJ doctors were veri out, required by opportunity there no fied, statute; although cross-examine; the statute makes the reports they in evidence, admissible if verified, *7 weight to such is entitled as warranted from of all evidence the case.
Many we have times, held that the supported by any will be Commission sustained if sub stantial pany, Duke v. Pekin evidence. Wood Products Com Springdale
223 264 182, Ark. S. W. 2d Monu 834; Company Allen, ment v. 216 426, 226 2d 42; Ark. S. W. Company Construction Tri-States v. Worthen, 224 Ark. Casualty Company S. 418, 352; 274 W. 2d American v. 224 Ark. 41. Jones, appear 731, 276 W. 2d it Here, S. does support is there substantial evidence to finding. the Commission’s The evidence this case is overwhelming perma to the effect the claimant is nently totally disability and disabled, and that his is due lungs; to condition circumstantial evidence points disability. to silicosis the cause All of period the doctors who examined the claimant over a disability time stated that his due silicosis; is evi weajk contrary very dence to the and not substantial. there Whether is substantial evidence is a matter of law. Highway Byars, Arkansas State Commission v. 221 Ark. 845, 256 S. 2d 738. W. compensa- law of this
The State that workmen’s broadly liberally tion cases should be construed, and that doubtful cases should be resolved favor Springs Arkansas National claimant. Bank Hot v. Springs Colbert, 209 Ark. 193 1070, 806; S. 2d Elm W. Canning Company Sullins, v. 257, 207 Ark. 180 S. W. 2d Manufacturing Company 113; Williams v. Walker, 206 Company 392, 175 380; Ark. Jones, 2d Peerless S. W. Coal v. 2d 181, Ark. 240 S. W. 647. any meaning If this law or force or effect, applied judgment should be here. The of the Circuit Court is affirmed. George Holt, McFaddiN
Justices Rose Smith dissent. dissenting. Contrary J., George Smith, Bose opin- pertinent majority
every of this court the decision light favor- evidence in this case in the least ion views the abundance of the Commission. The able to the supporting this the denial of of substantial ignored weak, claim characterized as minimized, altogether. discussing like the evidence should Before govern in the consideration to review the rules that us appeals like one. this early of L. Williams & It was settled case J.
Sons,
Smith,
82,
Inc. v.
205 Ark.
S. W. 2d
604, 170
Compensation
finding's of the Workmen’s
Commission
jury.
weight
aof
are entitled to the same
as the verdict
adopted in that case
evidence rule was
*8
uniformly
since.
and has been
followed ever
given the
When the
the Commission
appli-
jury
certain
rules
same effect as
verdict
other
play
jury
and have
the
come into
cable to
review
trials
invariably
past.
that the evi-
been
followed in the
One is
strongest light
in
in favor
dence must be viewed
the
Tapley,
findings. Hughes
Ark.
v.
206
the Commission’s
Ark.
Garner, 208
2d
v.
739,
429;
S. W.
Ozan Lbr. Co.
177
Campbell
Co., 215
Athletic etc.
W. 2d
v.
645,
Ark.
181;
187 S.
whether
223
The rule
the same
773,
S. W. 2d 499.
claim. As we said
the
the
Commission allows
denies
Springdale
226
Allen,
426,
216 Ark.
in
Monument
v. Co.
rejected
claim:
the
2d where the
had
42,
S. W.
Commission
probative
testimony
strongest
give its
“When we
the
deny-
in
action of the full Commission
force
favor of the
say
ing
we must
we are unable
do,
the
award,
’’
testimony.
action
such
was not based on some
jury,
and
in
for the Commission
As
the case of
reach conclusions
not this court to draw inferences
Ark.
Co., 210
v. D. F. Jones Const.
from the facts. Wren
sole
the
W. 2d 896. It is likewise
Commission’s
40, 194 S.
province
when medical
fact
to arrive at a conclusion of
testimony
Workmen’s
in Ark.
conflict. It was said
Comp.
Sandy,
382:
233 W. 2d
821,
v.
Ark.
S.
Com’n
217
ex
medical
“In the instant
the
case,
conflicting,
disability
the
of the claimant’s
tent
evidently
accept
report
Commission
chose to
of Dr.
authority
Cheairs. The courts are without
to reverse the
regard.”
conclusion
Commission
this
A more detailed
conflicting
statement of the rule as to
medical
Flooring
evidence was made in
v.
Burdine
Partee
“
Mill, 218Ark.
60,
S. W. 2d 193: We do not
here
have
expert testimony
a case wherein the
can be held to be
‘
uncontradicted:
“Moreover, were it conceded that all
expert
agreed upon
witnesses
introduced
the case
argued by appellant,
jury
conclusions as
would not
necessarily have to so find the
be,
facts to
because such
testimony may
by any
competent
be controverted
other
evidence.” St. Paul Fire & Marine Ins. Co. v. Green, 181
Ark.
1096,
There is direct and evidence that McKown injuriously exposed Boyd was ato silica hazard in the company mine. When he went to work for that in 1938 proof or 1939 he stated, to the uncontradicted in the record, his asthma was so bad that he could given not work inside the mine. He was therefore an out- job, side at which he worked until 1942. began
It in 1942 was that McKown to work inside the employed mine. He for at least was, of his time, 90% pumper, duty being pumps expel his to tend the proof pumper water from the mine. There is aas parts McKown worked in the wettest, most dust-free and in addition he mine, the indraft of fresh was continuously through air that was circulated the mine. Boyd fully The mine was the first one in the state to be equipped constantly sprayed with which water, was cutting keep to machines down harmful dust. The subject surprise inspections by mine was state, federal, company representatives; reports and insurance all the commendatory. were compensation
Three men, it is were true, awarded having employed benefits for after silicosis been last Boyd dusty mine. men, These however, worked in the may acquired areas of the mine and have silicosis before equipped They pump- the mine was with water. were not ers and did not work in the favorable conditions that at- job. principal testimony McKown’s tended The indicat- ing any that McKown worked for substantial time where being given by rock credibility cut McKown himself. His open question. resigned job When he applied unemployment compensation, in 1951he ing (a) for stat- discharged, (b) that he had been been he had replaced by (c) applied machine, that he had Camp work hearing at Chaffee. McKown admitted aat below that all three statements were false and had re- charges being brought against sulted fraud him. The certainly Commission was free to discredit McKown’s exposure about his to dust and to believe the proof contrary given unimpeached witnesses. foregoing background proof The was the that the weighing Commission had before it in the medical testi- mony. lay majority’s At the outset would aside the qualifications remarks about the of the veri- doctors, reports, fication their and the lack of cross-examina- .of tion. None of these matters have been or could be raised appellee. procedure before the Commission Hardly any many physicians informal. who tes- qualifications. tified were asked about their there Had part been desire on the of the claimant to examine the *10 qualifications, witnesses about their to demand that their reports right be verified, to exercise the of cross- examination, the issue should have been raised before the supposed Commission. The defect could then have been readily by elementary litigant, remedied. It is a failing object, irregularities waives could be cor- timely objection rected at once if a were made.
Upon only positive the record a few can statements undoubtedly be made about McKown’s condition. He is rapid disabled reason of shortness of ex- breath undoubtedly emphysema haustion exertion. He has lungs, which is a condition thick- characterized a ening spaces oxygen through the of walls air the which undoubtedly is absorbed into the blood stream. It is true repeated N-rays lungs do not show McKown’s ordinarily accompany disabling grade nodules that a silicosis.
Emphysema secondary is not itself a disease; it something pivotal result of else. medical issue is whether MeKown’s result silicosis point or of some other condition. On this the medical testimony is in conflict; irreconcilable them- the witnesses certainty impossible. selves Riley concede that up by saying summed the matter that the absolute presence determining post- method silicosis is mortem examination. concerning diag-
There are two medical theories grade nosis the II silicosis, which, to much of proof, disabling grade is the lowest of the disease. grade Some authorities believe that this can exist even though X-ray films reveal no silicotic nodules. Other equally respected, authorities, such nodules believe that invariably present progressed are when disease point disability. thought professes
Neither school of absolute cer- tainty example, physi- the matter. Here, even the majority opinion on cians whose rests positive nearly majority so as the of this members perhaps position court. Dr. Chamberlain is as sure of his diagnosing malady of the doctors McKown’s says grade silicosis. He II eliminated, can be be- *11 the nodules absent. He cause is unable to attribute particular emphysema grade cause; tbe can, silicosis present. Riley diagnosis Dr. or cannot be made a of April grade having in after no silicosis, II, 1952, found upon of two silicosis examinations of McKown diagnoses in be correct, 1951. Both his cannot as it dispute that could not have shown without the disease progressed originated with- between his examinations exposure study continued to silica. A careful out testimony favoring McKown’s record shows the just majority the termed claim is testimony upon as “weak” as the have rely. Mc-
which chose to the Commission proof. of had burden of Kown, course, the testimony majority as insub- The which the dismiss physicians, opinions the some stantial includes five experts unquestionably Dr. whom are in the field. San- recognized authority. der, ais expert opinion obtaining Commission submit- In the reports X-rays, ted for his consideration the pro mate- other available other doctors and all con, Upon Dr. in the case Sander rial. the basis of the data all my opinion says: man “In that this it is conclusion, no evidence of silicosis.” supporting of the Com-
Other following: Dr. a Fort Smith Rose, mission includes experience forty physician years with who has had present before must coal a states that nodules be miners, out he rules made; of silicosis can be determination Douglas Mc- silicosis case. Dr. states McKown’s emphysema Dr. Dar- no silicosis. Kown has marked with surgeon Smith, Fort nall, who is the thoracic “I cannot see evi- testified: cross-examined, who diagnosis by X-ray make a and I cannot dence silicosis opinion. Hornberger Dr. of a similar silicosis.” emphy- implication majority’s that McKown’s assumption explained only he sema can be supported by the record. Both has silicosis Hornberger emphysema say that and Dr. Sander “ puts it: The be As Dr. Sander could asthma. caused emphysema They causes of are numerous. include only long-standing asthma and chronic . . bronchitis. . Every many internist sees cases of severe persons exposure who had have never dust a mine or *12 factory have who never had the diseases which one commonly emphysema.” of thinks as causes of No wit- disputes testimony. years prior ness this several to For asthma not McKown’s was so severe that he could work inside the mine. He that he was treated for admits immediately asthma after he became in 1951. disabled liberty The Commission was at on basis conclude, to the of uncontradicted substantial that McKown’s evidence, ques- origin. any is of asthmatic In event the tion is of one fact for the Commission alone. pay lip-service majority evi- substantial by citing
dence rule some of the been cases which it has applied. unquestionably But in this record there is sub- proof stantial to sili- show that McKown not have does exposure preponderates cosis. The evidence of in favor appellants. affirmatively physicians of the Five skilled state that McKown does not have There the disease. admittedly development emphy- other for of causes the sema, one of which is to exist in case. shown McKown’s explanation
What, then, can be the for the reversal question of the Commission’s decision fact? apparently The answer ma- lies the final words of the jority opinion, compensation where it cases is said that liberally should be cases construed and that doubtful should be resolved in un- favor the claimant. It is doubtedly compensation true that the law itself should liberally may be construed in favor It of the workman. also be true the limits of commissioners, within the liberally their the consciences, should construe evidence majority in the favor. But if the mean claimant’s it is reversible error the fail to take Commission to liberal deci- view of claim, the evidence favor of the the demonstrably wrong sion is for several reasons. (we passed elsewhere have not
First, authorities directly point) sensibly reject on the view error when it does reversible
Commission commits quote employee. favorably To to .the the evidence view a few cases:
“ everywhere these rule the settled It is course liberally work in favor of the are to be construed acts argue, as counsel seem but this does man; mean, sufficiency proof, measure of that the rule as to the ordinary cases. rule in from the is different satisfy reasonably plaintiff on the The burden is course of and in the arose out trial court that the accident employment, and where there of the workman’s support legal neg judgment, affirmative or whether the trial court, parte appeal.” Ex Gole will not be disturbed on ative, Ala. 114. man, 211 So. 248, 100 *13 liberally con- be course to “The act ... is of provide purpose legislative to of a strued furtherance injuries compensation within sustained for accidental provisions, scope construction rule of liberal of its but the nothing commission function of the to do with the resolving weighing testi- in the conflicts evidence or App., Long-Turner mony.” Mo. Co., v. Const. Staten S. 2dW. 375. liberality of the Workmen’s
“The
of construction
provisions
Compensation
thereof
Act
extends
upon
proof required
mer-
the trial on
not
to
App.,
Co., La.
Lbr.
Hinton v.
Central
its.”
Louisiana
“In the case at
must
liberally
compensation
construed,
statutes shall be
men’s
questions
apply
rule
not
to
that that
does
and, also,
concerning
the construction
fact but to matters
dispense
principle
with the
and that the
does
statute,
requirement
the act
benefits under
that those who claim
prove
competent
which
the facts
must,
Dept.
Industries, 33
they rely.”
Labor &
Ehman v.
Third, and most it is require the Commission to take a evi- biased view the responsible dence. If the commissioners are to be determining they the facts must be free to decide issues credibility points and other controverted of fact in they sincerely accordance with their own If consciences. lying believe that A witness and that witness B is tell- ing they accept testimony, the truth, must be free to B’s whether it is favorable or No adverse to the claimant. *14 self-respecting man would continue a tribunal to sit required by higher prejudicéd which was court to take a view of the evidence. Yet that be the result if must this court holds that the commissioners commit reversible they sympathy error when fail to show for the claimant. justice certainly In the administration of a new doc- trine for a court facts to declare that the finders impartial, they must not be must, fair and under penalty tip reversal, the scales in of one of the favor litigants. regret put stronger I cannot into lan- my guage conviction the decision this case wrong. join
Holt and McFaddik, in this JJ., dissent.