11 Alaska 327 | D. Alaska | 1947
This is a proceeding to review the decision of the Alaska Industrial Board, awarding compensation to Steve Chutuk for disability following a hemorrhage as a result of rupturing a blood vessel of the lungs during a fit of coughing which is said to have had its inception in a chill suffered by the employee on July 21, 1946, while in a refrigerator taking an inventory of the contents in the course of his employment as cook.
The employee testified that he noticed a cold a day or so after his exposure and that, although he felt better by the 1st of August, in the evening of the 17th he expectorated blood, and later the same day had a hemorrhage. The Alaska Industrial Board found that the claimant suffered a chill from the low temperature in the refrigerator and that this resulted in the cold and cough; and further, that the long hours worked, because of a shortage of help, constituted unusual circumstances which resulted in the homorrhage.
Libby, McNeill & Libby, hereinafter referred to as the employer, resists the payment'of the award on the ground
Upon the argument, the parties agreed that the sole question was whether the chill, with the subsequent cold and cough from exposure to a temperature of about 10 degrees above zero for approximately 30 minutes in the refrigerator of the employer, was an accidental injury.
Obviously the hemorrhage cannot be considered as a separate and independent injury for it had its inception in the chill. Notwithstanding this, however, the Board found that the hemorrhage was due to the long hours of employment which, it held, constituted unusual circumstances, citing United Paperboard Co. v. Lewis, 65 Ind.App. 356, 117 N.E. 276. The evidence shows that the claimant worked seven days a week and that his overtime for July amounted to 79 hours. An examination of that case, however, shows that it is not at all in point. It is also clear that the rupture of a blood vessel in the lungs was caused by coughing and not by any physical strain or effort or the performance of any act in the course of the employment. It may be conceded that working overtime may result in overexertion or fatigue, but in the case at bar there is no causal connection between overtime and the hemorrhage. Gillett v. Prairie Brass & Metal Co., Mo.App., 179 S.W.2d 494. Far from constituting an unusual condition, overtime was the rule and every day was the same so far as time worked is concerned. Whether the coughing was aggravated by the overtime would seem to be wholly speculative and conjectural.
The employer relies on Lerner v. Rump Bros., 1925, 241 N.Y. 153, 149 N.E. 334, 335, 41 A.L.R. 1122, where the
The rule which seems to have been evolved and is recognized in nearly all jurisdictions is that a disease to be an injury by accident must be traceable to a definite time and place of origin and must moreover not be the ordinary result of an employee’s work reasonably to be anticipated as a result of pursuing the same but contracted as a direct result of unusual circumstances connected therewith. United Paperboard Co. v. Lewis, 65 Ind.App. 356, 117 N.E. 276; Barron v. Texas, Employers’ Ins. Ass’n, Tex.Com.App., 1931, 36 S.W.2d 464; Christian v. State, 1920, 191 App.Div. 635, 182 N.Y.S. 347; Galluzzo v. State, 1930, 111 Conn. 188, 149 A. 778; General Printing Corporation v. Umback, 1935, 100 Ind.App. 285, 195 N.E. 281; Pirillo v.
It was applied to factual situations identical with or substantially similar to that in the case at bar in Lerner v. Rump Bros., supra; Lacey v. Washburn & Williams Co., 1933, 309 Pa. 574, 164 A. 724; Lanphier v. Air Preheater Corporation, 1938, 278 N.Y. 403, 16 N.E.2d 382, in which Lerner v. Rump Bros., was followed; Allith-Prouty Co. v. Industrial Comm., 1933, 352 Ill. 78, 185 N.E. 267; Osterritter v. Moore-Flesher Hauling Co., 1942, 150 Pa. Super. 236, 27 A.2d 262; Moyer v. Union Boiler Mfg. Co., 1943, 151 Pa.Super. 477, 30 A.2d 165; Stevens v. Village of Driggs, 1944, 65 Idaho 733, 152 P.2d 891; Decker v. Perfection Ldry., 1942, 151 Pa.Super. 94, 29 A.2d 429; Mills v. Susquehanna Collieries Co., 1933, 107 Pa.Super. 432, 164 A. 69; Sonson v. Arbogast, 1939, 60 Idaho 582, 94 P.2d 672.
To the contrary are Robbins v. Enterprise Oil Co., 1937, 252 App.Div. 904, 299 N.Y.S. 837, where the death of a mechanic, who, in changing gears in an automobile, was required to lie on his back on the cement floor of a garage about three hours where he was subjected to draft and as
There are also decisions in which the disease itself is held) to be the injury, but an examination of them reveals that in each case there was actual physical injury, as distinguished from a chill, resulting from unusual physical effort or strain.
If in the case at bar the employee had suffered a hemorrhage as the immediate and direct result of unusual physical strain or effort in the course of his employment, the injury would be compensable under the authorities supporting this rule regardless of any aggravation by a cough, cold, overtime or weakened physical condition; but since a chill experienced upon encountering a low temperature is a common experience and more often than not is not followed by
Accordingly the decision of the Board is reversed.