Lumbermen's Mutual Casualty Co. v. Lynch, 11 S.E.2d 699

Lumbermen's Mutual Casualty Co. v. Lynch

11 S.E.2d 699 | Ga. Ct. App. | 1940

1. Disability to an employee caused by a disease which results from unusual, sudden, and unexpected inhalation of gas or fumes, while performing the duties of his employment, where the disease causing the injury is not the natural result of the existence of conditions necessarily incident to the work being performed, is the result of an injury by accident and is compensable under the compensation act.

2. Negligence of an employee in continuing to work after knowingly inhaling the fumes under the conditions above indicated does not constitute a bar to compensation.

DECIDED NOVEMBER 14, 1940. Frank C. Lynch filed with the Industrial Board a claim for compensation against the Monticello Hardware Company and the Lumbermen's Mutual Casualty Company. It appeared from the evidence at the hearing before the director, that the claimant was employed as a mechanic by the Monticello Hardware Company; that in performing his duties he used an electric welder; that on January 14, 1939, he and a fellow employee were engaged, in behalf of their employer, in welding a tank located in a manhole beneath a street in the City of Monticello; that the claimant worked in the manhole from 9 in the morning until noon, and then from one o'clock until five in the afternoon coming to the surface for fresh air at frequent intervals; that the electric welding caused fumes which could be seen and smelled; that the claimant was aware of the fumes during the entire day, and shortly before noon noticed that inhaling such fumes affected his breathing; that soon after he *531 returned to work at one o'clock he felt weak and experienced a choking sensation, with difficulty in breathing, so that when he finished work at five o'clock that afternoon he was suffering from a shortness of breath, and felt weak; that shortly after midnight he became nauseated and suffered pain in his chest; that the following day the claimant was examined by a physician who diagnosed his condition as edema of the lungs, and that on account of such condition he became disabled and was unable to perform his work for "some" seven weeks, for which he sought compensation. The physician who was called to examine and treat the claimant testified that edema of the lungs could be caused by fumes and gas resulting from the welding of metals. He further testified that he had observed people with "edema of the glottis and edema of the lining of the lungs that were in great distress from the fumes from that gas," and, "I should think that the gases of any nature that are irritable, chlorine or carbon monoxide or the nature of the heavy metals that can be liberated into a gaseous state can cause that." He also testified that in his opinion the claimant was suffering from acute bronchial inflammation of the inner lining of the lungs, presumably, from the history of the case, due to an irritant. He testified that from his examination and the history of the case he would state that the claimant "received some injury from a gaseous substance that produced an irritation, as it came on after the experience that he described, the symptom of which was dizziness following the trip down the manhole," and that his conclusion was that "it was an irritation due to gases that he inhaled at that time." The claimant testified that he had been welding for many years, that he had been using an electric welder for some four years, and that he had never suffered any ill effects therefrom before the instance involved in the present proceedings.

The hearing director denied compensation, holding that the claimant's "disability did not result from an accidental injury arising out of and in the course of his employment, nor to a disease or condition which resulted naturally and unavoidably from an accidental injury; but that his disability was due to a congested and irritated condition of the lungs brought about, not by an accidental injury, but what was in the nature of an occupational disease due to long and continued exposure to gas and fumes," and that "there is no evidence establishing any definite injury at any *532 definite time, but to the contrary it appears that his condition gradually developed during the day from continued exposure to the fumes." He further found that in the present case the "claimant was forewarned of the fact that the fumes were causing nausea and weakness, and he should have foreseen and expected that the continuous exposure to the fumes would be injurious to his health," and that "after several hours of inhaling the fumes he began feeling the ill effects of the fumes, but he continued exposing himself to the fumes and because of this continuous exposure his condition gradually grew worse, and finally resulted in the disease from which he suffered for seven weeks." The board, on appeal, reviewed and affirmed the award of the director. The claimant appealed from that award to the superior court of Jasper County, where the award of the board was reversed. The order of the court, in part, is as follows: "It is the opinion of the court that the award or decree of Harry E. Monroe, on May 26, 1939, and the award of approval by the full board on June 19, 1939, should be reversed on the ground that said award is contrary to law, for the reason that it is without evidence to support it, in that the evidence in the case demands the single director and full board should have found that the disability of the claimant resulted from an injury or disease, or injury arising out of and in the course of employment in resulting naturally therefrom." From this judgment the employer and the insurance carrier excepted. "`Injury' and `personal injury' shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form except where it results naturally and unavoidably from the accident." Code, § 114-102. In order to be compensable under the compensation act the disease must arise out of, or result from an accident or injury arising out of, and in the course of, the employment. If the facts show a causal connection between the injury and the development of the disease the victim of the disease is entitled to compensation. It has been held that where a disease results from a sudden or unexpected inhalation of gas or fumes it results from an accident or injury within the meaning of the compensation acts. Although the decisions on the subject are not uniform and can not *533 be entirely reconciled, generally diseases resulting from unusual and unexpected inhalation of gas fumes or dust result from accident within the meaning of the compensation act, but where the injury is the natural result of the existence of conditions necessarily incidental to the work being performed, as where the resulting diseases are occupational diseases, it is held that they do not result from accident. 71 C. J. 593, § 344. It has been held that where an automobile mechanic inhaled a large amount of exhaust gas from an automobile in the course of his employment, and thereafter contracted pneumonia from which he died, the cause of his injury was the inhalation of the gas although the pneumonia would have been the immediate cause of his death. See Columbine Laundry Co. v. Industrial Commission, 73 Colo. 397 (215 P. 870). All physical sickness and disease result from an injury when there is a causal connection between them. It has been held that death resulting from bronchitis was the result of accident where the deceased unexpectedly inhaled gas, fumes, or dust in a coal mine, which caused the bronchitis. Thoburn v. Bedlington, 5 B. W. C. C. 128. Also it has been held that a disease resulting from a sudden and unexpected inhalation of mine gas is accidental within the meaning of the compensation act. New Marissa Coal Co. v. Industrial Commission, 326 Ill. 116 (157 N.E. 32). Also it was held in Travelers Insurance Co. v. Smith (Tex.Civ.App.), 266 S.W. 574), that lobar pneumonia resulting from the inhalation of chlorine gas resulted from an injury within the compensation act. Also in the case of Schabel v. Riddell-Robineau Mfg. Co., 245 Ky. 409 (53 S.W.2d 750) it was held that pneumonia resulting from inhaling sawdust when disconnecting pipes blowing sawdust into a furnace was a disease resulting from accident or injury within the compensation law. It was held in Mauchline v. State Insurance Fund, 279 Pa. 524 (124 A. 168), and also in Johnston v. E. E. Orcutt Garage, 103 Pa. Super. 507 (157 A. 46), that where the injury results from an undesigned inhaling of smoke and fumes on a single occasion, compensation would be allowed. Many cases along the same line might be cited sustaining the view that diseases resulting from unusual and unexpected inhalation of gas, fumes, or dust, result from accident or injury within the contemplation of the workmen's compensation acts. See 71 C. J. 594, n. 50.

An occupational or industrial disease is not compensable under *534 the Georgia workmen's compensation act. See Covington v. Berkeley Granite Cor., 182 Ga. 235 (184 S.E. 871). Such a disease is one caused by, or especially incident to, a particular employment. It is a diseased condition arising gradually from the character of the work in which the employee is engaged, that is, a disease acquired in the usual and ordinary course of an employment which from common experience is recognized to be incidental thereto. It has been said to be the natural and reasonably to be expected results of a workman following a certain occupation for a considerable period of time. See 71 C. J. 599, and cit. The case of Simmons v. Etowah Monument Company,42 Ga. App. 633 (157 S.E. 260), is an excellent example of an occupational or industrial disease. There an employee of a monument company inhaled small particles of sand and marble dust as an incident to the performance of his employment, and this resulted in tuberculosis of the lungs. This court ruled that the employee was not entitled to compensation. The disease in the Simmons case was not caused by any accident or injury to the employee. The disease, called silicosis, was incidental to and the natural result of the employment to which the employee was at all times exposed when engaged in the performance of his work. Had this disease not resulted from the inhalation of particles of sand and marble dust incident to the employee's work, but had this disease, although arising out of the employment, been the result of the sudden and unexpected inhalation of particles of sand and marble dust by the employee, he would thereby have received an injury by accident, and the resulting disease of silicosis would have arisen out of an accidental injury. The Simmons case was thereafter approved inBerkeley Granite Co. v. Covington, 183 Ga. 801 (190 S.E. 8). In that case it was held: "Where, as the result of an employer's negligence, an employee breathes quantities of granite dust over a period of time and in the course of his employment, and the breathing of said dust causes the disease of silicosis, such disease is not the result of an injury or accident within the meaning of the Georgia workmen's compensation act (Code, § 114-102), and is not compensable thereunder." This decision was based on the fact that the disease of the employee, under the facts of that case, was an occupational disease and not the result of an accident.

Under the facts of the case now before the court the disease of *535 the claimant's lungs resulted from an unexpected inhalation by him of the gas and fumes caused by the welding carried on by him and his fellow employee in the manhole beneath the street, on the occasion in which the claimant and the other employee were repairing the tank underneath the street, and did not result from a diseased condition arising gradually from the character of the work in which the claimant was engaged, and as the natural result of the existence of conditions necessarily incidental to his employment. Such disease resulted rather from unusual and sudden inhalation of gas and fumes on a single and special occasion wholly unexpected by him, as contradistinguished from inhaling such fumes over a considerable period of time as a natural and expected incident to the employment. Under the authorities first above referred to it is our opinion that the disability of the claimant resulting from the diseased condition of his lungs caused by inhaling the gas or fumes from the electric welding on the occasion when he and his fellow employee were working in the manhole beneath the street, was the result of an accidental injury and was therefore compensable under the workmen's compensation act. The undisputed evidence demanded a finding that the claimant's disability resulted from an injury by accident, and the award by the hearing commissioner and the board denying compensation was without evidence to support it. The fact that the claimant continued to work that day, after being aware of the fumes and after feeling ill effects therefrom, would not bar him from compensation. Negligence of the employee, no matter how gross, will not bar compensation where the injury is otherwise compensable. See AEtna Life Insurance Co. v.Carroll, 169 Ga. 333 (150 S.E. 208); Horn v. PlantersProducts Company, 40 Ga. App. 787 (151 S.E. 552). It follows that the judge did not err in setting aside the award of the Industrial Board denying compensation.

Judgment affirmed. Sutton and Felton, JJ., concur.