KRAFT, Respondent v. KOLBERG MFG. CO., et al., Appellants
File No. 11249
Supreme Court of South Dakota
March 19, 1974
April 19, 1974
215 N.W.2d 844
WINANS, Justice.
Elmer E. Gemar, Tyndall, for respondent.
WINANS, Justice.
In this Wоrkmen‘s Compensation proceeding the employer Kolberg Manufacturing Company, and its insurer, Travelers Insurance Company, appeal from a judgment of the Circuit Court of Yankton County affirming an award for сompensation benefits granted by the Deputy Industrial Commissioner. The award in this case was based upon a finding that the claimant was suffering from an Occupational Disease as defined under the Occupational Disease Law.
The claimant, George C. Kraft, was employed by Kolberg Manufacturing Company from August 1967 through October 5, 1967. Employed as a painter, the bulk of Kraft‘s work was done inside an enclosed building. During this period of employment, the claimant, who had prior to this time been in reasonably good health, became ill, had to seek medical attention, and was hospitalized on two different occasions. As a result of this illness, Kraft wаs forced to terminate his employment with Kolberg.
“only the diseases enumerated in this section shall be deemed to be occupational diseases * * *. No diseases or aggravation thereof, except those in this section defined shall be deemed occupational diseases and compensable as such.”*
The findings of fact of the Industrial Commissioner concluded that during the claimant‘s employment, the claimant “inhaled
Prior to dealing with the contentions raised by the appellant, the rule of review for this case should be reсognized. This rule was set forth in Joffer v. Crusy‘s Power Brake & Supply, Inc., 83 S.D. 191, 156 N.W.2d 189, where the court stated:
“The trial forum for ascertaining facts is the Commissioner and facts so found must be accepted by the reviewing court, unless so palpably erroneous on the record as to be unreаsonable; such findings standing substantially upon the same plane as a jury verdict.”
Any consideration of the rule quoted above should be made together with the well established principle, the claimant has the burden of рroving all facts essential to compensation and if he fails to meet such burden of proof the Commissioner has the duty to deny compensation. Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191; Riccord v. John Burns Memorial Hospital, 82 S.D. 68, 141 N.W.2d 160; King v. Johnson Bros. Construction Company, 83 S.D. 69, 155 N.W.2d 183; Campbell v. City of Chamberlain, 78 S.D. 245, 100 N.W.2d 707; Joffer v. Crusy‘s Power Brake & Supply, Inc., supra.
Having recognized the burden of proving all the essential facts of his claim is on the claimant, it becomes necessary to evaluate the evidence to determine whether the claimant has in fact met this burden. It should be noted proof need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence. Mehlum v. Nunda Cooperative Ass‘n, 74 S.D. 545, 56 N.W.2d 282. Before any award may be sustained, the findings of fact of the commissioner must be supportеd “by substantial, credible,
The appellant would contend there is no definitive support for the contention exposure to zinc chromate paint fumes caused the claimant‘s condition. The evidence presented as to thе actual precipitating cause of claimant‘s illness, is sufficient. As previously noted proof need not rise to a degree of absolute certainty. Addressing itself to the question of what quantum of proof neеd be established in each case, this Court in King v. Johnson Bros. Construction Co., supra, stated:
“The essential facts need not necessarily be proved by direct evidence, but may be established by reasonable inferences from facts known to exist. Schlichting v. Radke, 67 S.D. 212, 291 N.W. 585.”
The faсts known to exist in this case were the claimant had experienced reasonably good health prior to taking the job with Kolbergs; claimant had experienced no prior lung difficulty; claimant spray paintеd machinery inside an inadequately ventilated work area; the claimant inhaled zinc chromate paint fumes; after about six weeks of work at Kolberg‘s he became ill and hospitalized; and the claimant suffеred bronchitis and bronchiolitis due to chemical irritation and pneumonia due to chemical irritation. From these facts inferences could be drawn that this exposure did have the causal effect of рrecipitating the condition of which claimant complains.
We feel that the facts, circumstances, and conditions testified to by the claimant and the medical witnesses would establish but a single fair and reasonable inference, that being the claimant‘s exposure to the zinc chromate fumes was the cause of the claimant‘s condition and the claimant has sustained his burden of proof as to cause.
This Court in Oviatt v. Oviatt Dairy, Inc., supra, stated:
“A recognized purpose of the Workmen‘s Compensation Law is to transfer from the wоrker to the employer, and ultimately to the public, a greater portion of the economic loss due to industrial accidents and injuries and is remedial in character and entitled to a liberal construction. Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191; Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911; Bergren v. S.E. Gustafson Construction Co., 75 S.D. 497, 68 N.W.2d 477.”
Giving
Upon a review of the entire record we hold the decision of the Commissioner, having substantial, credible evidentiary support, was not palpably erroneous.
Judgment affirmed.
BIEGELMEIER, C. J., and DOYLE and DUNN, JJ., concur.
WOLLMAN, J., dissents.
WOLLMAN, Justice (dissenting).
“He (claimant) was painting in a close space using zinc chromate and lead-bаsed paints apparently, from the information we have here, for the prior six weeks to the onset of the symptoms.”
On cross-examination, however, Dr. Berg acknowledged that he had never made any examination into the type of paint fumes that might have been involved in claimant‘s illness, that he did not know what type of paint fumes claimant had inhaled, that he did not know what agents might have been in the paint claimant was using, and that the only information he had in this regard was what he had been told by claimant. There is no evidence in the record to establish that this hearsay information given by claimant to his doctor had any basis in fact in view of thе utter lack of foundation that claimant had any knowledge of what type of paint fumes he had inhaled at his place of employment. Thus I would hold that the Deputy Industrial Commissioner‘s finding that claimant had inhaled zinc сhromate paint fumes was not supported by substantial, credible and reasonable evidence. Oviatt v. Oviatt Dairy, Inc., 80 S.D. 83, 119 N.W.2d 649, and cases cited therein.
Even if we elevate Dr. Berg‘s testimony regarding the zinc chromate paint fumes to the level of evidence sufficient to support a finding, claimant‘s case still falls short in view of the Deputy Industrial Commissioner‘s finding that as a result of inhaling such fumes claimant had suffered “bronchitis and bronchiolitis due to chemical irritation and pneumonia duе to chemical irritation” and his conclusion that claimant was suffer-
The majority opinion implicitly recognizes that to be compensable claimant‘s condition must fall within one of those statutorily enumerаted diseases set forth in
In short, claimant tried his case on the wrong theory: he never claimed that he had inhaled zinc chromate paint fumes or that he was suffering from chrome ulceration and poisoning. He is the beneficiary of what in another case was described as a “theory transplant” and a rescue oрeration for a “litigation casualty“. United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 1122, 35 L.Ed.2d 475, 506. (Rehnquist, J., dissenting.)
I would reverse.