18 P.2d 933 | Cal. | 1933
In these causes a single writ of review was issued by the District Court of Appeal, First District, Division One. The regular justices of this division, Mr. Justice Knight and Mr. Justice Cashin, sitting with Mr. Justice pro tem. Johnson, gave the causes most careful consideration which included extended original research. The justices reached a tentative conclusion as to the proper rule of law to be declared in such cases and to that end Mr. Justice pro tem. Johnson prepared an exhaustive opinion wherein he promulgated this rule. The justices then found that their conclusions were at variance with *340
other opinions of the District Court of Appeal in similar cases, to wit: Kauffman v. Industrial Acc. Com.,
"The petitioners in this proceeding presented to the Industrial Accident Commission their several applications for compensation benefits under the Workmen's Compensation Act; and the applications having all been denied after due hearings, wherein there arose questions of law and of fact common to all parties, the petitioners joined in applying to this court for a review of the orders by which they deem themselves aggrieved. The petitioners Irene Marsh and Myrtle Woods are applicants for death benefits by reason of the deaths of their respective husbands, Daniel Birch Marsh and Jack C. Woods, while the petitioner Harry Lange applied for disability compensation in his own behalf.
"Marsh, Lange and Woods had all been employed by the Spicky Polish Corporation, whose insurance carrier was the State Compensation Insurance Fund. The Spicky Polish Corporation is engaged in business in San Francisco in the manufacture of a silica powder used for cleaning and polishing purposes. From the evidence it appears that, by reason of conditions incident to their employment, the three men named became affected with an occupational disease, such as is frequently contracted by miners working in tunnels, and which is medically known as pneumonoconiosis silicosis, or more simply as pneumoconiosis silicosis, a term denoting a disease of the lungs due to silica dust, and sometimes called merely silicosis. Marsh worked in the plant from *341 December 13, 1926, to February 13, 1928, and died on February 14, 1930. In the case of Lange there was an interruption in his employment, his service which began on February 11, 1927, having continued to November 15, 1927, and then after an interval having been resumed from April 1, 1928, to June 8, 1928. Woods was employed from June, 1928, to August 3, 1929, and died on August 10, 1929. The applications of all three applicants were filed on October 20, 1930.
"The orders denying compensation and death benefits were based upon the ground that each of the applications was barred by lapse of time under the provisions of the Workmen's Compensation Act; and it is for the determination of this question that the writ of review was issued in this proceeding.
[1] "An occupational disease is classed not as an accident, but as an injury; and under section 11 of the act proceedings in such cases for collection of disability payments must be begun within six months from the date of the injury; and for collection of death benefits within one year from the date of death, subject to the exception, among others, that the right to such benefits is barred unless death ensued within one year from the date of the injury. As will be seen later, this exception becomes pertinent in the Marsh case, Marsh having died on February 14, 1930, and the proceeding by the widow having been instituted on October 20, 1930, and hence earlier than one year after the death. As is said in Textileather Corp. v. Great American Ind.Co.,
"In the manufacture of silica powder for commercial purposes by the Spicky Polish Corporation, silica rock brought from the quarry to the company's plant is there ground by mechanical processes into a very fine powder, and then deposited in bins, part being sacked and sold in bulk, and part used on the premises in combination with soap in the preparation of the polish. By reason of these operations, the air is constantly thick with minute particles of silica dust, and during the employment of the men in question the factory was not equipped with devices to carry off the dust. Marsh, Lange and Woods were all engaged about the grinding machines and took part also in sacking the product. As a result they all contracted a form of disease of the lungs known as pneumoconiosis silicosis, but the real character of the ailment from which they had suffered was not understood until about a month before the applications of these petitioners were filed.
"It is not the mere inhalation of the dust that causes the pneumoconiosis. A brief explanation of the characteristics of pneumoconiosis is contained in Sullivan's Case,
"Many circumstances combine to diversify the symptoms, the physical and X-ray findings, and the course of the disease. Depending upon the duration and intensity of the exposure to the dust, the size of the particles, the intercurrence of infections, and the like, the disease may develop within a comparatively few months or may take many years and may even manifest itself only after the lapse of several years following cessation of exposure. In its manifestations it may simulate heart disease or other varieties of lung disease, and in earlier stages it may present but few and ill-defined signs in the stethoscopic and even the X-ray examination. Under these circumstances, it is natural, therefore, that the disease should be frequently overlooked, not only by the sufferer himself, but also by his physician; and that even fatalities from the disease should be sometimes ascribed to other causes, often to the secondary infection, unless the physician is made aware of the preceding exposure to silica dust and has familiarity with the varied manifestations of pneumoconiosis.
"In such an occupational disease, the specific date of origin is impossible of determination. It is the cumulative effect *344 of exposure day after day that produces the injurious results; and because of the very fact that `injury', in the statutory sense, is referable to a period of time rather than a point in time, some rational norm must be adopted for determining the `date of the injury' in the practical application of the statute of limitations embodied in the act. With this in view, we will consider separately the claims of the petitioners.
"The Marsh Case — The application of Irene Marsh for benefits on account of the death of her husband was denied by the Commission, on the ground that the application was barred because death had ensued more than one year from the date of the injury.
"In all these cases, the Commission takes the position that no occupational injury could have occurred after the last day of employment, and that the date of injury for purposes of the act was the day on which the employee's service terminated. The claimants contend, on the other hand, that the date of injury is the time at which a medical practitioner can determine the nature of the disease.
"When Marsh left the employ of the Polish Corporation on February 13, 1928, it was not because any symptoms of lung trouble were manifest at that time, but because of an injury to his hand, which had no influence on the subsequent developments. It was not until December, 1928, that he began to complain of his chest and to lose weight and show marked weakness; and from that time his health continued to decline until his death on February 14, 1930. The cause was, however, not known until an X-ray picture was taken about a week before he died, which showed conditions characteristic of pneumoconiosis.
[2] "The law does not award compensation for mere pain or physical impairment, unless it is of such character as to raise a presumption of incapacity to earn. The object is to make amends for a disability attributable to the employment, and the test is whether there is an incapacity causing loss of earning power in whole or in part. Hustus' Case,
"In De la Pena v. Jackson Stone Co.,
[4] "An injury, then, may arise out of, and in the course of, the employment when there is a causal connection between the employment and the injury; but for purposes of compensation the injury dates from the time when the diseased condition culminates in an incapacity for work. It is at that time that the employer's liability becomes fixed; for until then the workman had received no injury in the legal sense, though the seeds productive of the injury had lodged in his frame long before. Johnson v. LondonGuarantee Acc. Co.,
[5] "Our Compensation Act expressly provides that it shall be liberally construed for the protection of persons injured in the course of their employment, and the purpose of such laws is to protect workmen, in proper cases, from economic insecurity. It is not surprising to find, therefore, *346
that in those jurisdictions where occupational diseases are compensable, it is almost universally the rule that the injury is not deemed to occur until ascertainable disability results. And it may be noted that in our own state it has been held that an employee is not to be deprived of compensation because he fails to make a correct medical diagnosis. Winthrop v. IndustrialAcc. Com.,
"`Accidents frequently occur where the true nature of the injury and the resulting disability are not discernible for a considerable time even with the aid of scientific skill. When latent injuries from accidents do not at first indicate disabilities which are compensable, an employee is not necessarily deprived of compensation under the Workmen's Compensation Act, Comp. St. 1922, sec. 3056, for failure to demand his rights under the act before they can reasonably be ascertained. An accident resulting in an injury which proves to be progessive in its nature belongs to that class.' Again inTravelers' Ins. Co. v. Ohler,
"Upon the same principle it is held that when a strain is suffered which does not at once disable, but later gives rise to a hernia, the injury occurs when the rupture manifests itself.Re Brown,
"There are several instructive cases also in which injury to an eye was sustained without culminating in blindness until after the lapse of a considerable period. In some of these cases the time for instituting proceedings is made to run only from the time when blindness finally resulted, while in others the date of the injury is fixed as of the time when the diseased condition culminated.
"In Gunderian v. Sterling S. R. Co.,
"In like manner in Acme Body Works v. Koepsel, supra, the court acted upon the principle that injury did not occur, or a right to compensation for partial total blindness arise, until sight had been lost, even though nearly six years had *348 intervened between the accident and the blindness, and though the claimant's employment had meanwhile changed. The accident had occurred on June 23, 1920, while Koepsel was in the employ of the Acme Body Works, but it was not until July 12, 1926, when Koepsel went to a physician because of a slight accident received that day that it was found that there was a cataract causing industrial blindness. On December 22, 1926, Koepsel filed an application upon which a hearing was had, wherein it was determined that though the blindness was caused by the accident which occurred in 1920, the date of the injury was June 12, 1926, and that the right to compensation from the former employer or the insurance carrier was not barred.
"In other jurisdictions, however, the rule adopted is that the injury occurs when the diseased condition culminates. Such was the rule declared in Johansen v. Union Stockyards Co.,
"A like rule was applied in Missouri, though expressed in different terms, in two recent cases of injury to the eye. It is there declared that in the case of a latent injury the period of limitation begins to run from the time when it *349
becomes `reasonably discoverable and apparent that a compensable injury has been sustained'. Wheeler v. Missouri Pac. R. Co.,
"Our research has brought to our notice also a group of cases in Connecticut, in which disability was caused by pneumoconiosis, which developed as a result of inhalation of silica dust, created by grinding the surface and edges of tools or other articles upon revolving wheels of stone with the use of water, a practice known as `wet grinding'. In most of these instances tuberculosis, locally called `grinders consumption', became superimposed upon the pneumoconiosis. The cases which have engaged our attention in this connection are the following: Kovaliski v. Collins Co.,
"In these Connecticut cases there was exposure to the dust-laden atmosphere for various lengthy periods, ranging from 40 months in an intermittent service during a period of 5 1/2 years in the Rousu case to a period of 23 years continuously in the Kovaliski case, at the end of which time the weakened bodily condition yielded to tubercular infection. In all these cases in which either tuberculosis or pleurisy developed, or death occurred, as a direct result of the primary pneumoconiotic injury, the court held, in concurrence with the Commissioners, that there was evidence sufficient to show an unbroken causation between the conditions of the employment and the secondary injury producing the incapacity for labor, or the death, and that the workman so incapacitated was entitled to compensation and his dependents to death benefits. Mesite v. International SilverCo.,
"In the Romaniec case, pneumoconiosis developed at some time during a service of 11 years as a wet grinder, but not to such extent as to cause disability. At the end of that time Romaniec, acting upon the advice of a physician, returned in 1919 to Poland, where he engaged in farming for 4 years, after which he came again to America, and resumed service with his former employers from February, 1923, to July, 1925, when he became disabled from pleurisy, due to aggravated pneumoconiosis. He worked spasmodically until February, 1926, by which time he became totally disabled. The date when his injury became compensable was found to be July 25, 1925, the time at which the disease culminated.
"In the Jadovich case, the claimant's employment began as a wet grinder in 1907 and continued to October, 1921. Then after an interval he resumed work from November, 1922, to May 5, 1923. In May, 1927, claim for compensation was made upon the ground that in the course of the employment, pneumoconiosis had developed, and that in its *351 progress it caused the claimant to become disabled on April 12, 1927. At a hearing had on May 23, 1927, the Commissioner found that by reason of his employment Jadovich had a `first stage pneumoconiosis' but was not then disabled; and the application was dismissed without prejudice to a renewal `should he be able to prove that he had a real disability because of pneumoconiosis'. The application having been renewed on March 5, 1928, it was then found that the claimant had been totally incapacitated since June 11, 1927, and compensation was accordingly awarded.
"In like manner in Schaefer Co. v. Eicher,
[6] "From our study of the subject we are brought to the conclusion that in the case of a latent and progressive disease, such as pneumoconiosis, it cannot reasonably be said that the injury dates necessarily from the last day of exposure to a dust-laden atmosphere and that the prescriptive period begins to run from that day. Rather, according to our view, should the date of the injury be deemed the time when the accumulated effects culminate in a disability traceable to the latent disease as the primary cause, and by the exercise of reasonable care and diligence it is discoverable and apparent that a compensable injury was sustained in performance of the duties of the employment. . . . In order to justify an award for disability or death due to an occupational disease, there must always be established an unbroken causal connection between the injury and the employment or the condition under which the employee is required to carry on his work. The connection must be such as to show that the disease or injury was proximately caused by the employment or the conditions of work; and when such unbroken chain of causation is found to exist, then all physical consequences flowing from the disease or injury are proper elements for consideration in determining the merits of a claim for compensation or death benefits. Madore v. New DepartureMfg. Co.,
Respecting the claim for death benefit in the case of Woods, the application was made on October 20, 1930. It was therefore filed more than one year from the date of the death of Woods, August 10, 1929. There is therefore no escape from the mandatory provisions of section 11 (b), subdivision (2), of said act and the action of the Commission in denying relief was clearly correct. The order in this case is affirmed.
In the case of Marsh, who died February 14, 1930, the application was filed on October 20, 1930, which was within one year from the date of death. But the Commission found that death did not ensue within one year after the date of injury as provided by section 11 (b), subdivision (2) of said act. In reaching this conclusion, however, the Commission fixed the beginning of the running of the prescriptive period as of the date the deceased was first disabled from work. This holding is not in consonance with the rule of law laid down above; neither does the evidence disclose when the presence of pneumonoconiosis or silicosis was or should have been diagnosed as the primary and efficient cause of the disability and later the death of Marsh. The award in this case is therefore annulled to the end that further proceedings may be had to ascertain when the statute of limitations began to run.
In the Lange case the Commission made no finding as to the date when the presence of pneumonoconiosis should or could have been discovered as the efficient and primary cause of disability. The conclusion that the claim was barred under section 11 (b), subdivision (1), of the act was reckoned solely from the date when disability first prevented the applicant from working. Under the rule of law declared by this opinion the evidence fails to disclose sufficient data for a conclusion as to when a causal connection between the occupation and the disability was or should have been discerned. The award in this case is, therefore, annulled *353 to the end that further proceedings may be had not inconsistent with these views.
Langdon, J., Curtis, J., Shenk, J., Seawell, J., and Waste, C.J., concurred.