*1 39178. SHIPMAN v. MUTUAL EMPLOYERS LIABILITY INSURANCE et COMPANY al. February Rehearing denied
Decided March & Ward, Ward, M. Williams, plaintiff Brooks Cullen error.
Smith, Swift, Currie, Hancock, McGhee <& McGhee, Glover contra. Judge. E. Shipman L. applied to the State Board
Eberhakdt, Compensation for a hearing to determine his right on account of a loss in each employment from his had resulted ears which asserted Corporation. Aircraft flight-line mechanic at Lockheed
as a that claimant Upon hearing, appeared from evidence flight-line mechanic with employed continuously *2 to another until he was shifted Lockheed since in 1953 some required that he work job August work had His jet operated engines, proximity aircraft close opera- test intermittently purposes, which while operation continuous, the not noises. While produce tion terrific day. occurring each regular, engines frequent was hearing. began notice a loss of claimant In January, 1959, fairly checkups at given medical Employees plant of the were began up regular showing hearing intervals, loss and his From department. medical plant audiometer made by tests June, progres- 1959, successive tests disclosed January through by sive which were rated increasing loss of hearing, per per right ear being audiometer test as cent in and 34 51 ear by left for both cent June. Medical witnesses they employee at hearing, testified agreement practical purposes” that “for all were right though lost left hearing the loss in his ear, right ear, ear could less; as to his that, was somewhat normally produced, conversa- ordinarily hear sound sound possible for him to though it was hear like, tions and ordinary. Claimant’s ranges out usual and pitch was hearing loss expert witness, otologist, testified company typical due trauma.” “nerve deafness to noise claimant’s it medical director was testified produced rapid “due to loss hearing unusually was noise.” ground that no there had been
The insurer defended on the further act, within it occurred, it be though that even such had found (r) Code Ann. 114-406 compensable provisions § (Ga. 212; p. L. p. as amended The issue before whether result loss of us, then, (here, is a series hearing) (here, trauma intermittent noises of jet time) and, engines injury, is an accidental
489 if whether all is "for so, if loss of practical purposes” complete. disease, “a traumatic as dis-
We have heretofore held that which is ideopathic one tinguished from an [sic] (Emphasis compensable.” physical Co., Mutual 61 Ga. supplied.) v. Lumbermen’s Cas. Griggs App. 448, SE2d aff’d 190 Ga. SE2d 450 277 impact not a neces- Moreover, physical settled that “injury,” to an result sary prerequisite on the be- App. Maryland ing test. Cas. Ga. Co., Williams 3) (21 (2, 478); Georgia Power Co. v. SE2d Reid, Exterminating 672); Wright, Orkin Co. v. SE2d Mut. Ins. Co. v. 205); Ideal Ray, Larson, Compensation Law, (1952). 38.61 The medical testimony indicated each time engine flight re- run on line a traumatic action occurred in claimant’s ear. *3 Kansas,
In a statute identical substantially where there is presented similar respect, with ours in a situation was this Boeing Airplane Winkelman v. 166 Kan. P2d Co., 171). The employee in case was an assistant instructor guards pistol range practice. at the em- company In that subjected hearing ployment pistol range shots the he was on failed, each months. working hearing for 18 His and day against employer filed common-law action recover permanent hearing. the company defended on ground that sole plaintiff’s remedy the was under workmen’s compensation agreed, statute. The court as holding, had testimony, pistol the medical that each established shot had upon effect a traumatic the mechanism of claimant’s ears, point that it holding and further necessary to the particular shot caused had the deafness, applying employee” “result the test used in Maryland Williams v. supra. Cas. Co., In the course pistol “Manifestly the observed: each explosion, retort or at the time it some injury occurred, contributed permanent injury. the The proof of injury probably as time, place relative to definite, the circumstances, as na- definite think it was the At least we as permitted. ture of The statute does required. particular the as circumstances ‘time’ the accident except mention the word arise. It so employment. arise the did must in the course compensable, injury occurring single accident is result of dozen injury resulting we from a surely not declare that will all accidents, occurring more of the same or similar noncompensable.” employment, course Supreme More Court of Tennessee had before recently (Tenn.) the case Co. v. Reed of Brown Shoe inso- compensation their act arising which, workmen’s ours. in its terms with here, far is relevant is identical ma- operation of a employed There claimant was In that work heavy doing shoes. trimming chine soles the left hand and arm repeated jerking pulling resulted machine months operation of atrophy. in a loss of sensation, fingers, numbness reported He to the First Aid Office this condition of his sought physician. Upon of his advice afterwards repeated jerking pulling hearing the testified that doctor ulnar repeated movement of the resulting arm and the separate nerve the end of the bone was, across effect, injury. resulting permanent traumatic nerve upon ground that here, employer there defended, injury. However, found been no board in affirming the award for contrary, “ Supreme unquestionably appears Court said: [I]t injuries proof repeated nerve, to this one of these no resulted in but the disabling him, which, accumulation re- permanent sulted substantial fur- arm,” *4 observed, ther “While true the point to no particular particular date or jerking, or a blow pulling or running this machine on heavy shoes, produced soled yet necessary that the injury, any it is accident occur at time. particular specific The pulling or series of or jerking or employee’s produced to the holding on hand unexpected which was and unintended and occurrence.” that urged happened what The had to the employee
491
rather than ac-
occupational
disease
comes in
category
here.
rejected
we
the court
such
do
cident,
contentions,
but
case and Winkleman
similarities in
instant
ap-
been similar
Company
obvious.
Brown
There have
Shoe
are
situations
plications
compensation statute
like factual
scratches,
etc.,
cases:
—successions of
in other
bumps,
jars,
(297 418);
Corp.,
v.
Petroleum
Kan. 776
P
Barker
Shell
e.g.,
(Okla.)
Gillespie
W. Shan-
414;
Public Sendee
321 P2d
(272
Beveridge
&
Sims,
68);
house
Supp. Sex-vice,§ altogether Georgia. situation is not new in There at coxnpensation least two such awarded, cases which has been we In Southern McLain, Cotton Oil Co. v. approved. got continually claimant particles eye dust in it out continued to-rub with finger. period hand or caused rubbing, time, This particles dust the eye, sight scratch be- resulting in a loss of cause of pax-ticles a corneal ulcer. Claixnant testified dust got that eye every in his day, rubbing he was it out day, that every how did know on gone .and had eye began hurt. befox-ehis See testixrxony page The case of Lumbermen’s Mutual Cas. Co. v. Layfield, 610) the operator gas involved of a shovel jex-ked jolted who was days by for a of two three the machine, accompanied jarring” legs. a “constant of his physician His developed testified phlebitis legs, both cause of which infection, usual “one but that could have purely trauma without infection stream”; blood percent legs. both The board denied but compensation, superior court court reversed, affirmed, saying: “[T]his holds Industrial law, Board erred, as a matter of phlebitis finding by jarring a steam shovel three days was an disease. Any injux-y caused *5 not days three on a shovel jarring sudden is an injury but compensation the workmen’s act.” "accidental given of "accident” and We have definitions be here. Sub- means” headnote need restated not one, in in Brown Shoe definition cited stantially same in most other 65, supra, Co. v. Reed, claim- necessary that it is not cases. But we do think particular oc- upon his put ant be as it finger, were, able to hearing. engine left casion noises him bereft of when necessarily compensation “The right of claimant he definitely barred cannot fix of the accident because date disability, either remember in because cannot resulting the accident the acci- precise when occurred or because ascertaining dent difficulty was of such nature happened.” Poultry complete with Skinner accuracy when Mapp, v. Ideal Ga. Accord App. 273, Carpenter Ins. Co. v. supra; Mutual Bay, Corp., (2) Lockheed Aircraft dealing type "The says: with this Larson, situation, practical specific has problem of date for accident fixing date of Jersey saying simply handled New Thus, the date accident itself. manifests Super. in the Elec. Co., Ptak 13 N. J. General [Ptak 337], gradually-acquired 294, 80 A2d date of a sacroiliac pain strain the first was deemed moment made be impossible continue Maria work, Di Maria case [Di Wright 688], Curtis N.J.M. 44 A2d Corp., 23 date gradual accident for of use to be hands held development prevented finally on which date Compensation performing work.” 1 Larson, summarizing Law, page 569, footnote on supra, 39.50. In approved has been in gradual decisions which situations, jury will the courts Alabama, found cases from Arkansas, Florida, Georgia, Illinois, Arizona, Colorado, Idaho, Indiana, Louisiana, Maine, Michi Kansas, Kentucky, Maryland, Minnesota, Nebraska, Missouri, New Jer gan, Hampshire, New Mexico, sey, Carolina, New North York, Oregon, New Oklahoma, Washing- Pennsylvania, Tennessee, Dakota, Texas, Utah, South em- Wyoming. feel, therefore, ton We we do upon path, untried we are barking any new or situation in the which we assert. *6 lonely view hearing extent loss of claimant’s The to the evidence as totally purposes he was practical ordinary that for was all hear it right though possible for him to ear, deaf in his or- usual, out ranges pitch normal, at sound some left ear. extent in He a lesser his dinary. had suffered a loss though it be even that, It the insurance carrier urged by resulting that an accidental suffered held has the terms it a would hearing, p. (Code (r), Ga. L. amended, 1955, Ann. 114-406 act § agree. The 360). can not act p. With this we 212; 1958, compensation to provision industry related to and makes for employees injuries in the course industry who suffered prevents The us employment. rule construction of liberal or giving a word used in statute literal restricted purposes. defeat meaning which would its Lumbermen’s Mut. 277, Cas. Griggs, 190 Ga. Gazan 498). Heery, 3) Ga. 30 SE We have (1, ALR particular provision dealing found a with this act, but there many jurisdictions com- are cases other parable eyesight it that area of loss of wherein has been held “total loss of vision” in the act as used the loss means industrial the eyes, use of or industrial blindness—not absolute inability and total see. See Am. Jur. 784, Workmen’s Compensation, Compensation, 290; 99 CJS Workmen’s § Kilgore 316; 822; Annot. 142 ALR v. State Ins. Super. Pa. Fund, 127 A think We a similar con- proper struction here. is, If claimant as the tes- doctors have tified, practical for ordinary purposes by all unable hear right ear, has lost industrial in it. It is, purpose use, complete compensable. loss of use and is by the full case was considered court.
This judgment Superior Court is reversed with direction the matter be to the remanded board findings for further the Judges award. All concur, except Carlisle, P. J., Frank- who dissent. um, Jordan, JJ., opinion dissenting. While Presiding Judge,
Carlisle, rea well persuasive associate most by written able my the conclusion court reach do not think soned, I prece disregarding ignoring it case without has in this demand, and which binding authority dents Georgia cases result. my mind, contrary only least to now ruling authority for majority cited App. 177 v. McLain, 49 Ga. Cotton Oil Co. made are Southern Lay field, Mutual Cas. Co. Lumbermen’s true case, McLain In quoted the claimant, cross-examination of upon reading appears that page 184 of 49 App., sought eye loss of claimant’s contend existing employment, condition continuous evi accident, interpreted than rather but the head first dence as otherwise. so because showing This is *7 that note that the of case states suffered an accident as therefore, That must be assessed opinion, on March the precedent taking statement a into consideration this of by con by the interpreted’ as the case under facts court which had judgment the I do not think sideration, and be premise in that rendered viewed as based at a other than an injury that of accidental occurred which specific Layfield the Likewise, time. in the evidence case, re injuries and distinct showed series of definite in the claimed. sulting cases, however, interpreted authorizing these be are to as taken, yield
the must they view I think to older higher authority. Co., In v. Etowah Monument Ga. Simmons 260), was, prior SE of the enact to course, ment the occupational statute, of this court for con disease had sideration what the first seems to recorded case involving gradual disease of State. It was held this silicosis employee’s lungs particles lodging of of dust inhaled him of time period constitute ac injury by did cident, as that term in the act. question is used A similar presented Supreme Court in Berkeley Corp. Granite Covington, Ga. 801 SE wherein the court Appeals consideration decision Court of of 386) holding of disease silicosis the employee breath contracted time in the ing employment of dust condition did not created as a constitute the Com meaning an accidental within pensation In Supreme Act. Court affirming decision, page Appeals referred the earlier decision Court supra, Simmons Etowah Monument Co., adopted as interpretation ruling correct the statute the meaning of there made. Both have held Supreme Court consistently prior enactment the occupational disease (Ga. statute L. 1946, p. et seq.; 114-8), Code Ann. Ch. since enactment respect of that occupational law with therein, not expressly diseases covered exposure disease contracted the result of as continued distinguished one conditions of con employment, estab definitely tracted the result of an traceable to compensable. In all of the lished accidental occurrence, rendered, heretofore decisions courts of this State definition consistently courts adhered the view “injury” “personal injury” defined the act term (Code 114-102) accident Ann. only injury by concepts suddenness, unexpectedness, therein the embodies place pre definiteness of occurrence in so as to gradual even injury, clude award for a though the of trauma. See, result the cases connection, support compensa cited director award denying tion, wit, Lumbermen’s v. Lynch, Mutual Cas. Co. *8 (11 Martin v. 699); Tubize-Chatillon
530 SE2d 66 Ga. Corp., App. 481 Peerless Woolen 915); Pharr, SE2d Mills v. 74 Ga. App. (3) 459, 106); and Lumbermen’s Mutual gradual Cas. Co. v. Griggs, 190 Ga. the particles or accumulation lodging lungs of small of dust in the not a within of traumatic injury the of I cannot act, term used in the see imping how the mere ing of an noise on the employee intense eardrums of be can traumatic, and, therefore, held to be within mean I do not ing of act. think the decision majority Co. Cotton Oil either Southern authority
is sustained Co. Cas. 177, Lumbermen’s Mutual or McLain, 49 supra. Lay App. both field, 1, 61 Ga. fall case does not injury to Furthermore, my mind, majority “accident” stated the definition within argument that Conceding first headnote. sake I do occurrences, resulted from traumatic here involved injury “un- described as it can be any not think that view ex- an event event,” or mishap, looked-for and untoward be be one pected designed. to Neither can said or exposure to ordinarily which follow noise does it be evidence, nor can character described in the said exposure anticipated be reasonably a result to from would not be (see 31 judicial notice such noise.. take Evidence, 79) long exposure et of the fact that CJS 661, seq., noise results at least deaf- temporary ofttimes deafness, loud ness, exposure enough. permanent lengthy if events, question readily more into class fits em- naturally result encountered in conditions ployment. The due claimant’s excessive exposure to incidental noise, continued condition work. suffer- was, therefore, to and of his That little ing my from an industrial mind admits of doubt. 'disease,’ general may
“The be term, word defined as in body state organs, alteration in the or of some of its the performance of the functions terrupting disturbing vital (Webster’s 1139), and in sense a Dictionary; 18 CJ this broad body be portion might said to diseased when ceases although perform proper functions, its disorder therein may be the mere result of some affection or malady which operation Pilgrim a different primary is restricted area.” its Gomley, Health &c. Ins. Co. v. 30, (Texas Rodriguez Int. Civ. App.), Brotherhood v. 835, 840; Mann, Ins. of Va. Life 28 Ala. So. Order United Travelers Commercial (4). Judge Nicholson, Sibley &c. v. F2d rule stated the applicable succinctly Maryland facts Cas. *9 . . The when said: 357, 359, Co. v. 110 F2d Broadway, occurrence; attributable one must be some to definite it assign place able and cause. If must be it a particular happen- period, with no gradually, arises in a to, though it only disease, attribute it is caused ing to commonly general it is a way by work. disease it occupational is such work, compensable. not But referable bodily injury if definite occurrences to which work, occurrence series though place a time and can be it bemay assigned, it instantly.” not result Under this case does evidence the director was authorized to find claimant here suffering from an disease. I not think do matter authorized, sympathy court no strong how our injured be, disregard expressions by man clear may Supreme interpreta- this court Court court’s tion injury” of “accident” and “accidental go its base on outside and decision authorities from other jurisdictions controlling precedents not as on this court. question Admittedly, now before this court one of impression, principles applicable first but question to the prior clearly laid down decisions Supreme legislature op- Court. has ample portunity judicial years, interpreta- if deemed tion of “accident” injury” terms and “accidental used as the act restricted, narrow too the act amend so to more those clearly legislature define terms. This not has I fit seen to do and do think this court ought, under guise judicial basing decision and its decision on authorities precedent on it binding disregarding authorities binding which I deem be undertake to precedent, the act. I feel the majority opinion amend This does, and for these therefrom. I must dissent reasons Judges say
I am authorized to Frankum and con- Jordan in this dissent. cur