McGill Manufacturing Company, Inc. v. Dodd , 116 Ind. App. 66 ( 1945 )

DISSENTING OPINION I am unable to agree with the majority opinion in this case. I feel their opinion places a narrow construction on the beneficient purposes of the Indiana Workmen's Occupational Disease Act not intended by the Legislature. (Hereinafter this Act will be referred to as the Occupational Disease Act).

Section 6 of the Act here under consideration (§ 40-2206, Burns' 1940 Replacement) defines the term "Occupational disease," as follows:

"(a) As used in this act, the term ``occupational disease' means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section.

"(b) A disease shall be deemed to arise out of the employment, only if there is apparent to the rational mind, upon consideration of all of the circumstances, a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after its contraction it must have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence."

It will be noted that Subd. (a) defines "occupational disease" as one "arising out of and in the course of the employment." It then excludes ordinary diseases to which the general public is exposed outside the employment "except where such diseases follow as an incident of an occupational disease as defined inthis section." (My emphasis.) The word "incident" means "appertaining to or depending on." Webster's New International Dictionary, 3rd definition. I construe this subdivision to mean that where an ordinary disease of life is contracted as a result of conditions appertaining to or depending on the employment which arose out of and in the course of the employment, there is a compensable occupational disease.

Subd. (b) provides the conditions under which a disease shall be deemed to arise out of the employment. I construe the first sentence of this subdivision to mean that an occupational disease arises out of the employment where there is a direct connection between its cause and the conditions under which the work is performed, which reasonably may be determined to have followed as a normal result of the exposure occasioned by the work pertaining to the employment and which may be traced to such employment as a proximate cause of the disease, provided, of course, it does not arise from a hazard to which there is an equal exposure outside the employment. The disease must be incidental (viz. liable to happen or follow as a chance, feature or incident) to the character of the business and not caused by something independent of the relation of employer and employee. It need not have been foreseen but must have had its origin in a risk connected with the employment and resulted from such source as a reasonable consequence thereof.

Upon the foregoing construction of this statute I proceed to a consideration of the facts in the instant case to determine whether the appellee has brought himself within the class for whom the statute provides compensation. In considering these facts I take it that cases brought under this statute are no exception to the well-established general rule that where there is any substantial evidence to sustain the award of the Industrial Board this court has no authority to reverse such award. I further understand that in considering the facts in this case this court should only consider that evidence which is most favorable to the appellee.

In my opinion the majority has not followed the foregoing rules in considering the evidence in this case. In their opinion it is stated appellee's physician described appellee's condition as a "neurosis." While it is true the record discloses this physician on cross-examination said the condition of appellee was described as a "neurosis," yet in the same cross-examination said it could be brought on by conditions other than a disarrangement of the nerves, such as over-work. As pointed out in the majority opinion, appellee's condition was diagnosed as "Spastic Torticollis." Stedman's Medical Dictionary, 12th ed., gives the following definition of those words:

"Spastic — Spasmodic condition; — (a) local anemia from spasmodic vasoconstriction — (b) hemiplegia — partial hemiplegia with increased reflexes and spasmodic contraction of the muscles on attempted movement — (c) paralysis — partial paralysis with muscular rigidity."

"Torticollis — from Latin Tortus meaning twisted; Collum meaning neck. Wry-neck, stiffneck, caput obstipum, a spasmodic contraction of the muscles of the neck, chiefly those supplied by the spinal accessory nerve; the head is drawn to one side and usually rotated so that the chin points to the other side."

The record in this case discloses several pertinent items of testimony which I deem favorable to appellee which were not set out in appellant's brief nor referred to in the majority opinion. For example, appellee's doctor said the condition in which he found appellee was that he was suffering from a contraction of the muscles of the neck and a drawing of the head to the right; that this condition was objectively shown. In Stedman's Medical Dictionary, supra, a "Contraction" is described as follows:

"Contraction — A shortening, noting the normal function of muscular tissue — (a) A more or less permanent shortening of a muscle. (b) A shrinkage or reduction in size."

Other pertinent evidence in the record not found in appellant's brief is to the effect that this doctor could find no other hypothesis than that of his work which would have caused his condition. A psycho-neurotic condition may be brought on by the machine which appellee operated. Appellee's neck was definitely drawn to the right. He could strain it back but it would again draw back to the right. The number of movements made to the right and left by appellee is very material as to the cause of his condition. In the opinion of this doctor the constancy of his work brought appellee's condition to a climax. He stated appellee's condition was caused by his work.

The majority opinion quotes Webster's New International Dictionary and 45 C.J. 1930 in defining the term "Neurosis." These definitions were quoted in the recent case of StarPublishing Company v. Jackson (1944), 115 Ind. App. 221,58 N.E.2d 202. As a general statement, these definitions are not subject to criticism. However, there are many forms and kinds of neurosis, among which are traumatic, alcoholic, emotional, occupational, professional, reflex, vasomotor and Westphal's. Stedman's Medical Dictionary, supra.

It is admitted in the majority opinion there is sufficient evidence to sustain a finding that there was a causal connection between appellee's disease and the work performed, but it is asserted there is no probative evidence that appellee was suffering from an occupational disease as defined by the statute, § 40-2206, supra, and cites as authority for this statement the case of Star Publishing Company v. Jackson, supra. In my opinion the decision in that case cannot be an authority for the decision in this case because the facts there are clearly distinguishable from those in the case at bar. In the Jackson case, supra, Judge Draper, speaking for this court, stated the fact upon which our decision was made, as follows:

"The medical testimony indicated without dispute that plaintiff was in excellent health. No organic disease, muscle atrophy, sensory loss or impairment of reflexes or sensibilities could be discovered. His skull, spine, vital organs, blood pressure and pulse were normal and there was no weakness of the muscles of the left upper extremity. The tendons, nerves and arteries of the upper left arm were objectively intact and normal. The appellee was exhaustively examined in many other respects, but the objective examination was entirely negative. All medical witnesses agreed that plaintiff was suffering from a neurosis, and that the condition was not peculiar to any particular occupation. In only one respect did the experts disagree. The plaintiff's physician, who had not in his examination of the plaintiff explored the possibilities of a mental difficulty, testified: ``I would attribute it (such neurosis) to chronic fatigue of the nerve centers controlling the muscles of the upper left extremity, particularly those controlling the movement of the hand and digits which make the movements necessary to the operation of the linotype machine.' The others attributed it solely to a condition of the appellee's mind that had arisen out of a disagreement between him and his foreman, with consequent unpleasantness existing between them for a period of ten years, the appellee feeling that the foreman had discriminated against him, had been unkind toward him, had denied him well deserved vacations and twice attempted to have him discharged." (My emphasis.)

In the instant case the record discloses there was a tightening and contraction of the sternomastoid muscle which pulled the head to the right, which was described as a reflex. The objective examination was positive. There was no evidence that appellee's ailment was due to a condition of his mind, while there was positive medical evidence to the effect that his condition was directly attributable to the nature and conditions of his employment. The constant turning of appellee's head required by the nature of his work was not a hazard to which appellee would be equally exposed outside of his employment. There is positive evidence this was a material cause of his condition.

It is true in this case, as in the Jackson case, supra, that the disease from which appellee suffered is an ordinary disease of life to which the general public is exposed outside of the employment, and it is therefore not compensable unless it followed as an incident of an occupational disease as defined by our statute. In passing on this question this court, in the case of Chevrolet Muncie Division of General Motors Corporation v.Hirst (1943), 113 Ind. App. 181, at p. 189, 46 N.E.2d 281, again speaking through Judge Draper, said:

"Having in mind that our statutes do not provide that ordinary diseases of life to which the general public is exposed outside the employment may not under proper circumstances be compensable, but that such shall be compensable when they follow as an incident of an occupational disease as defined by the statute, . . ."

The effect of the majority opinion in this case is that under no circumstances can a "neurosis" become compensable under the Occupational Disease Act. I do not agree with such a construction of this Act. I believe there was substantial evidence from which the Board could have found that the nature of the work and conditions under which it had to be performed caused a shortening and a tightening of the sternomastoid muscle which drew the head of appellee down and to the right; that if the resulting condition is to be termed a "neurosis" it followed as an incident of a disease which arose out of and in the course of his employment with appellant. I therefore believe the award of the Industrial Board should be affirmed.

Hamilton, J. — Concurs.

NOTE. — Reported in 59 N.E.2d 899.