202 N.E.2d 628 | Ohio Ct. App. | 1962
Lead Opinion
An employee of the relator filed a claim for the payment of compensation with the state of Ohio Bureau of Workmen's Compensation, contending that he was totally disabled by reason of silicosis, having worked in potteries for 55 years. The claim was denied by the Administrator of the Bureau of Workmen's Compensation, and his decision was affirmed by the Canton Regional Board of Review, but upon claimant's appeal to the Industrial Commission the orders of the administrator and of the Canton Regional Board of Review were vacated and the claim for compensation, because of total disability due to silicosis, was allowed.
The employer brings this action in mandamus, alleging that the order of the Industrial Commission was unreasonable, arbitrary, unlawful and constituted a gross abuse of discretion in that the order was made without any evidence that claimant *376
had sustained an injurious exposure to silicon dioxide since October 12, 1945, or without any evidence that claimant had sustained an injurious exposure to silicon dioxide during the eight years prior to his becoming totally disabled, as required by Section
The relator states that evidence considered by the Industrial Commission indicates that dust counts taken at its plant have shown that the air which the employees would breathe contained a minimal amount of free silica and, under tests devised by the United States Health Service, the Industrial Hygiene Foundation, and the Industrial Commission's Division of Safety and Hygiene, there was not an injurious exposure to silicon dioxide; but, in spite of the evidence that the claimant's exposure at its plant had not been injurious to him, the Industrial Commission allowed the claim of the employee.
The employer cites the case of State, ex rel. Marion PowerShovel Co., v. Industrial Commission,
The employer did present evidence indicating that it was well below the recommended standard of maximum allowable dust concentration set by the Industrial Commission in its bulletin No. 203, entitled "Specific Requirements and General Safety Standards of the Industrial Commission of Ohio for Workshops and Factories," and it feels that, having complied with all rules and regulations and having kept a clean plant and having tried to provide for the care and safety of its employees, it should not be penalized by the commission's finding that the exposure had by its employee was an injurious exposure.
There is little doubt that the employer's record does indicate *377 that since 1935 it has been considerate of the employees' health and has operated well within the safety standards set by various testing agencies, and it is clear, from the facts in the case, that the Industrial Commission could find that claimant was totally disabled due to silicosis and that the exposure, which he had over the years while working in potteries, was the proximate cause of the disease.
The law requires the Industrial Commission to determine whether or not the exposure experienced was injurious to the individual worker whose claim it has before it for consideration. The answer of the Industrial Commission indicates that it considered the word, "injurious," to signify the cumulative effect of the total quantity of exposure to which an individaul claimant was exposed, and requires a determination that that exposure was injurious to the individual and did occur during the period of time required by law for the allowance of a claim of compensation for disability due to silicosis.
Section
"Silicosis means a disease of the lungs caused by breathing silica dust (silicon dioxide) producing fibrous nodules distributed through the lungs and demonstrated by X-ray examination or by autopsy."
An "injurious exposure" to silica dust would be an exposure which proximately caused silicosis or an exposure which augmented or aggravated a pre-existing silicosis.
From the evidence it would be hard to find that the employee did not have silicosis when he began his employment with the relator, as he had had many years of employment in other potteries where he was exposed to silica dust. While so employed he could not receive workmen's compensation, as under the provisions of Section
It is undisputed that the employee worked in potteries for approximately 55 years, and for the relator from 1933 until December 20, 1957. The claimant contended that he was constantly exposed to silica dust during the whole 55 years of his employment, but the employer contended that the exposure to free silica in their plant was not sufficient to cause silicosis. The *378 employer contended also that claimant was not disabled by reason of silicosis, and that his silicosis was not worse than it was when he began his employment with it. It is clear that the employee, having worked from 1933 to December 20, 1957, was not totally disabled by reason of silicosis during that time, and the silicosis referee board did find that, in its opinion, the claimant "was permanently and totally disabled due to advanced silicosis" when it examined him on October 11, 1958.
Under the provisions of Section
We do not feel that the Industrial Commission abused its discretion in this case in finding that the exposure, which the claimant experienced during the eight years prior to disablement, was an injurious exposure. The writ will be denied.
Writ denied.
DUFFEY, P. J., and BRYANT, J., concur.
Concurrence Opinion
Petitioner's principal contention involves the interpretation of the word "injurious" as used in Section
The extreme circumstances of this particular test case might justify criticism of the method for allocating the financial burden between successive employers. However, whether it is equitable to impose the entire burden upon the last employer is not the question before us. Deficiencies in the method of allocating costs is not a basis for defeating claimant's recovery. *379