Carlson v. Small Leasing Co. , 71 Idaho 35 ( 1950 )

PORTER, Justice.

Appellant duly filed with the Industrial Accident Board a claim for compensation for chronic silicosis under the provisions of the Occupational Disease Compensation Law. I.C. § 72-1201 et seq. After a hearing, the board entered an order denying compensation. From such order, appellant has appealed to this court.

Respondent, Small Leasing Company, is engaged in mining operations in Shoshone County. While it has done some underground mining, its principal operation consists in working old mill tailings by the “floatation” process. These old mill tail-ings were deposited in the flat on both sides of Canyon Creek as waste from the former workings of various mines. These tailings consist of ore and rock which has been crushed and milled. The old mill tailings and other debris are scooped up out of the creek bottom and hauled to the screening plant. They are then run over a vibrating shaker screen to separate the tailings from the debris. This screening is a dry operation, no water being used and generates a large amount of dust.

Appellant is a married man, 54 years of age, without children under 18 years of age. He was born in Norway and has lived here since 1926. He has done a little work in the woods but his occupation has been that of a miner. Appellant was employed by said respondent as operator of the screening plant from August 3, 1943, until September 15, 1948, with the exception that he worked underground during the winter of 1943-1944, and that he laid off work during the summer of 1947 by reason of ill health. During the winter months when the screening operation could not be carried on, he worked as a handyman around the mill and, among other things, did some rough carpentering.

The facts in this case are undisputed and are not in conflict. Respondents introduced no evidence. The board correctly held that “there being no issue of fact, the only disputed questions are of law.”

It is within the province of this court to determine whether the board made proper application of the law to the undisputed facts, and, if the board erred, then to set aside its decision. Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399; In re Larson, 48 Idaho 136, 279 P. 1087; In re Hillhouse’s Estate, 46 Idaho 730, 271 P. 459.

By specifications of error Nos. I and II, appellant contends that the board erred in ruling that appellant had failed to show hazardous exposure to the inhalation of silica dust subsequent to his underground work and in ruling that there is no substantial showing in the record as to the quantity or quality of silica dust to which he was exposed.

Section 72-1204, I.C., provides:

“Compensation as provided in this chapter shall be payable for disability or death of an employee resulting from the following occupational diseases:

“(11) Silicosis in any occupation involving direct contact with, handling of, or exposure to dust of silicon dioxide (SÍO2).”

The testimony of the witness Ringstmeyer was that the dust condition around the shaker screen was “pretty bad,” that at a distance the operation “looked like a little whirl-wind” of dust blown up from the screen; that this cloud of dust would be visible down the highway for three-quarters of a mile; that the dust condition around the screening plant was “too tough for me”; and that the screen operator’s clothing and exposed skin would be black with dust.

In its rulings, the board says: “While the Board, following the accepted practice in the mining districts of the state, has deemed a miner’s underground employment as a prima facie showing of hazardous exposure, it can not consider in the same category exposure to dust on the surface, without proof of the character of the dust and the concentration of small silica particles.”

The mill tailings being processed over the shaker screen were actual underground rock taken out in the old mining operations. This rock had been crushed by milling into even finer particles than when it came from the mines.

Section 72-1215, I.C., reads as follows:

“Whenever used in this chapter, ‘silicosis’ shall mean the characteristic fibrotic condition of the lungs caused by the inhalation of silicon dioxide (SÍO2) dust.”

Doctor Paul M. Ellis, a physician of long experience with silicotics, testified that appellant is suffering with the most severe degree of silicosis, grade 3, and has diminished expansion of the chest as a result of fibrotic changes in the lung itself; and that appellant’s silicotic condition is progressing. There is no evidence in the record showing that appellant, during the time of his emr ployment, was exposed to silica dust other than in his work as screen operator for respondent, Small Leasing Company.

The evidence in this case, although circumstantial, is competent, Walker v. Hyde, 43 Idaho 625, 253 P. 1104, and is sufficient to make a prima facie case that appellant was injuriously exposed to the inhalation of silica dust of quantity and quality sufficient to cause the characteristic fibrotic condition of the lungs, caused by the inhalation of silicon dioxide dust. In re Soran, 57 Idaho 483, 67 P.2d 906; Beaver v. Morrison-Knudsen Co., supra.

Appellant, having made a prima facie showing of injurious exposure to silica dust, and such showing being uncontradict-ed, it was error, as a matter of law, for the board to say that such showing was insufficient. Kelly v. Jackson ex dem. Morris, 6 Pet. 622, 31 U.S. 622, 8 L.Ed. 523.

Indeed, the board apparently recognized during the course of the proceedings that appellant had made a sufficient showing as to injurious exposure. Mr. Oppenheim, member of the board, in examining Doctor Ellis, stated:

“Doctor, we will make you the Board’s witness. You are a medical adviser now. The issue in this case has narrowed down to the man’s ability to work in any remunerative occupation. * * * ” (f. 69.)

By specification of error No. Ill, appellant urges that the board erred in holding that appellant “is not incapacitated because of silicosis from performing any work in any remunerative employment.”

The board’s finding No. VI is as follows:

“Claimant is afflicted with chronic silicosis, grade 3, with suspected, but latent or quiescent pulmonary tuberculosis, not, however, actively infectious. His symptoms are summarized by his physician, Dr. Paul M. Ellis, as follows: Shortness of breath; cough. Dullness in apices of lungs on percussion. Increased breath sounds on auscultation. Diminished expansion of chest on respiration. X-rays show silicosis grade 3, with coalescence of nodules in each apex of the lungs and moderate emphysema at the bases.

“Within the year claimant has lost weight from about 150 pounds to 134 pounds. An x-ray taken on the day of the hearing showed increased markings characteristic of progress of his silicotic condition.”

Doctor Ellis further testified that appellant could do some light work which did not involve extended climbing or lifting; that he should not be exposed to being overheated or chilled; that he is susceptible to lung infection; and that if he should get an infection or pneumonia that he would not be a very good risk and “I would rather some other doctor were taking care of him. I don’t believe his chances for doing very well would be very good.”

Since the termination of his employment with respondent, Small Leasing Company, appellant has only been employed for a period of about three months. This employment was on two different occasions as a laborer and he had to quit his work on each occasion because of shortness of breath, coughing at night, and loss of sleep. The. only other work done by appellant was self-employment where he could set his own pace in picking up high-grade rock by hand, out of the muck, which did not prove profitable. Appellant, on two occasions, attempted to obtain other employment as a common laborer but was refused employment on account of his physical condition.

The board held that the claimant, at most, proved partial disability from silicosis which, under the statute, is not compensable, and ruled “that on the showing made claimant is not incapacitated because of silicosis from performing ‘any work in any remunerative employment,’ which is the test of the occupational disease compensation statute as contrasted with the accident compensation statute.” Section 72-1216, I.C., reads as follows: “In case of silicosis, ‘disablement’ means the event of the first becoming actually incapacitated, because of such disease, from performing any work in any remunerative employment; and ‘disability’ means the state of being so incapacitated.”

It is evident that the board interprets the phrase “from performing any work in any remunerative employment” as being more restrictive than the term “total disability” as used in the accident compensation statutes. The board overlooked the reason for the use of the phrase “in any remunerative employment” in Section 72-1216, I.C. Under the general occupational disease compensation law, Section 72-1202, I.C., provides for compensation where the employee is “disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease.” (Emphasis supplied.) The phrase “in any remunerative employment” is used in Section 72-1216, I.C., with reference to silicosis in contradistinction to the term “last occupation” used in Section 72-1202, I.C., with reference to other occupational diseases. There is no essential difference in meaning between the term “total disability” used in the accident compensation statutes and the phrase “incapacitated * * * from performing any work in any remunerative employment” used in the silicosis statute.

In Endicott v. Potlatch Forests, 69 Idaho 450, on page 455, 208 P.2d 803, 806, this court quoted the following from Goble v. New World Life Ins. Co., 57 Idaho 516, 67 P.2d 280, as the appropriate rule in determining total disablement in workmen’s compensation cases: “The courts, generally, hold that in order to secure the benefits provided for in policies of insurance by reason of the degree of disability means by the use of such language as is here employed, it is not necessary for the insured to be absolutely helpless, or entirely unable to do anything worthy of compensation, or from which gain might be derived. If he is so disabled that substantially all the avenues of gainful employment are reasonably closed to him his condition is within the meaning of the covenant.”

Also, the claimant is not required to seek and perform labor endangering his life or health. Murphy v. Mutual Life Ins. Co., 62 Idaho 362, 112 P.2d 993; Liebmann’s Independent Ice Co. v. Ganther, 193 Okl. 218, 142 P.2d 605.

The Industrial Accident Board erred, as a matter of law, in holding, under the showing made, that appellant was not incapacitated from performing any work in any remunerative employment.

The order of the Industrial Accident Board denying appellant’s claim is reversed and the cause remanded to the board with instructions to make an award to appellant. Costs awarded to appellant.

HOLDEN, C. J., and GIVENS, TAYLOR and KEETON, JJ., concur.