St. Paul Tac. Lbr. Co. v. Dept. L. I. , 19 Wash. 2d 639 ( 1943 )

I am unable to concur in the foregoing opinion wherein it is stated that the conclusion to be drawn from the evidence submitted to the joint board is one of law and not one of fact, and that the finding of the joint board that the workman contracted an occupational disease of wood dust asthma from his employment, resulting in his death, is not sustained by the evidence; also, that any causal relation between the occupational disease and the death of the workman rests in speculation and surmise. I very much fear that the opinion will be construed as holding, in effect, that the sawmill industry, in so far as occupational diseases caused by intense dust are concerned, is not covered by subd. 22 of § 1 of chapter 135 of the Laws of 1939, p. 385 (Rem. Rev. Stat. (Sup.), § 7679-1), the same as was held in Polson Logging Co. v. Kelly, 195 Wn. 167,80 P.2d 412, with reference to chapter 212 of the Laws of 1937, p. 1031, as applied to the logging industry. We should not create such a situation because it is apparent the legislature did not so intend.

When the legislature of 1939 convened, it had before it thePolson case and other cases defining occupational diseases. It recognized that, in certain industries, if intense dust prevailed in their operations, or in the operation of any part or department thereof, there might be caused respiratory diseases by reason of the inhalation of such dust; and the act of 1937 was amended by adding to § 1 thereof the following subdivision: "(22) Any respiratory disease other than asbestosis or silicosis contracted through the inhalation of dust in any industry where intense dust prevails." The excepted diseases are covered by subd. 21.

Subdivision 22 is plain and unambiguous and needs no further judicial definition. Any workman (other than those referred to in the remainder of the section) who is employed in any industry in doing the work to which he is assigned and comes in contact with intense dust and, as a result of inhaling it, contracts a respiratory disease, is entitled to compensation; and, if death results, the named beneficiaries are entitled to benefits.

In the application of the 1939 act, neither the department nor the courts are any longer concerned with what the judicial definition of an occupational disease may have been, as the legislature has classified and defined them, and all must be guided thereby. In this case, when Mr. Higgins died, all the department of labor and industries had to determine was whether he had been (1) employed in an industry where intense dust prevailed in the place or places therein in which he worked; (2) that, in his work, he inhaled dust; and (3) that, by reason thereof, he contracted a respiratory disease which later caused his death.

At a hearing had before the joint board, it appeared that the deceased commenced to work for the St. Paul Tacoma Lumber Company in March, 1919, and worked continuously up to about January, 1941. He was a millwright and did the repair and maintenance work in the different departments of a sawmill operated by his employer. His duties required him to work from time to time on what was termed cyclones, or dust collectors, when they became plugged. The conveyors would have to be repaired. Dust was blown from the planing mill to the fuel room. Dust also came from a broom handle factory. This was a fine dust caused by the sanding of the broom handles.

The necessity for repair and maintenance work in and about these several places brought the deceased in frequent contact with intense dust and, in many instances, for considerable periods of time. He had a nasal difficulty which impaired his ability to breathe through his nose, and, as a result, he breathed mostly through his mouth. In 1933 or 1934, the deceased commenced to have what his wife called "smothering attacks," which would follow his work at "an especially dusty job," and he would have to sit up to breathe. Gradually, he developed a cough and further difficulty in breathing and sleeping. This was followed by bronchial difficulties and by what a medical witness called "asthmatic bronchitis." The time came when he found it necessary to take a rest after working in a dusty place. In January, 1940, and again in January, 1941, the deceased was in a hospital suffering from pneumonia. He complained that working in the dust "hurt" him and affected his throat and lungs. His condition became progressively worse, and physicians recommended that he seek a higher and drier climate. He was not able to perform his work after his illness in January, 1941. In June, 1941, he left for Colorado, and, while on the train, he died.

The joint board heard the testimony of two physicians. One of them had assisted in the medical treatments given to the deceased over a considerable period of time. He stated that the deceased had been affected with asthmatic bronchitis, which could have been caused by upper respiratory irritation, and the irritation could have been caused by his working in intense dust, and this could have aggravated his condition. He stated the respiratory condition was associated with a cardiac condition. He minimized somewhat the probability of the dust causing any trouble because of its stoppage by the nasal cavities. However, he did not take into consideration that the deceased had a stoppage of the nasal cavities and breathed largely through his mouth, but he did admit that there would be an aggravation of the nasal mucosa, which might cause upper respiratory infection, which might, in turn, aggravate the chest and thus create a descending infection. He further stated that, if the deceased experienced further difficulty in breathing, the chronic cardiac condition he found to exist would be affected because of the greater load that would be put upon the heart, and, as the difficulty in breathing progressed, so would the cardiac condition.

The other physician thought the deceased might have been allergic to the dust he contacted in doing his work, and that this had caused his respiratory troubles, but he could not give it as his opinion because of the lack of having skin tests made. He believed from the history of the case as given him and what examination he had made that the condition of the deceased was consistent with bronchial asthma, rather than cardiac asthma, and that this very definitely contributed to his death. He stated that this usually started with a slight irritation and progressively grew worse when there was a continued contact with causative substances; also, that it is not at all unusual for one to be exposed to a certain condition and not develop symptoms of sensitivity for a long time. The witness was examined at some length as to bronchial asthma and cardiac asthma, and the greater probability of one following work in the lumber industry than the other, but this led to no definite result, and the witness finally closed his testimony by stating that bronchial asthma is an "individual proposition going solely with the individual, rather than with any industry."

The coroner (a physician) who examined the deceased to determine the cause of his death made no autopsy, but certified that his death was caused by cardiac asthma. One of the physicians stated, however, that, even with a full account on the past history of the deceased, one could not definitely diagnose the cause of death as cardiac asthma without an autopsy, and followed this by giving his opinion that, in view of the types of symptoms and their continuation over a period of time, bronchial asthma very definitely contributed to the death of the deceased.

In view of all the testimony given both by laymen and by experts, the joint board reached the factual conclusion that the deceased had contracted an occupational disease of wood dust asthma from his employment, resulting in his death.

Our statute, Rem. Rev. Stat., § 7697, provides that, in all court proceedings, the decision of the department shall be primafacie correct and the burden of proof shall be upon the party attacking the same. This statutory rule has been expressed in many of our decisions. In applying the statute, this court has made statements from which it might be inferred that factual conclusions as to cause of death from injury must come from medical men. But it seems to me that, when these cases are critically read, there was a situation presented in each of them that the court felt the factual conclusion of the medical men as to a particular result was not overcome by the testimony of nonexperts. I do not think this court has ever said or intended to convey the impression that the trier of fact in the industrial insurance cases cannot adopt and base a finding of fact upon nonexpert testimony. In this case there are both.

It seems to me that the employer wants this court to adopt the view that the deceased had an over-sensitiveness to wood dust, but, as he was not a victim of any peculiarity of the lumber industry and did not die as the result of any operation in that industry where "intense dust" prevailed, his death was not the result of any occupational disease.

The act of 1939, in enumerating what are occupational diseases, includes respiratory diseases contracted through the inhalation of dust in any industry where intense dust prevails. It does not draw any distinction between individuals who may be sensitive to dust and those who may not. Nor does it specify that the dust must be of a poisonous character or that its quantity be such that it will produce any particular result. The social objective to be attained is to compensate for the result following the inhalation of dust, the only qualification being that the prevalent dust be intense.

We have often decided in the "heart cases" that, even though a person, by reason of a weakened heart condition, be more susceptible to the effect of physical exertion than those with normal hearts, this fact does not deny him the right to compensation. McCormick Lbr. Co. v. Department of Labor Industries, 7 Wn.2d 40, 108 P.2d 807, and cases cited and reviewed therein. There is close analogy between those cases and this one in the application of the principle that the industrial insurance act protects the weak as well as the strong. It would seem strange, indeed, that, in view of the statute, an employer could have the benefit of the services of an employee over a long period of time in a dusty class of work and because, by chance, it affected him in a greater degree than it did others and he became afflicted with a respiratory disease, he should be denied the benefits of the act.

The evidence, in my opinion, leads to no other reasonable factual conclusion than that the deceased, by reason of his long and constant inhalation of wood dust, had contracted a respiratory disease, which greatly increased the work his heart had to do, and this finally reached a climax, the heart ceased to function, and he died. The joint board did not decide any legal question or arrive at any legal conclusion, as we are invited to hold. It drew a factual conclusion, and, I think, a correct one. I think the trial court was in error in rejecting the factual conclusion the department drew from the evidence submitted and that the judgment should be reversed.

This result would make it unnecessary to decide the other two questions — whether an employer who has appealed from a decision of the department is entitled to have an attorney's fee allowed him, and whether the case of State exrel. Crabb v. Olinger, 196 Wn. 308, 82 P.2d 865, should be overruled, and their decision should be left until some case comes before us in which they are directly involved.

BLAKE, JEFFERS, and MALLERY, JJ., concur with GRADY, J.