Boyd Excelsior Fuel Company v. McKown

288 S.W.2d 614, 226 Ark. 174, 1956 Ark. LEXIS 410

• Court: Supreme Court of Arkansas
• Decided: April 2, 1956
• Docket: 5-865
• Status: Published

Opinions

Sam RobiNsoN, Associate Justice.

The appellant operates a coal mine where the appellee worked as a miner for about 10 or 12 years. In 1951, appellee quit work and made a claim for workmen’s compensation, contending that he is disabled because of silicosis. The first hearing was conducted by Mr. C. L. Farish, Chairman of the Workmen’s Compensation Commission, who made a finding that the claimant contracted silicosis within the meaning of the statute while in the employ of the respondent, and awarded compensation. On appeal to the full Commission, compensation was denied by a majority of the three member Commission. Mr. Farish was no longer Chairman; but Mr. Arnold B. Sikes, who was then a member of the Commission, dissented, stating it is his opinion that the claimant has Grade 2 Silicosis, and is totally and permanently disabled. The claimant appealed to the Circuit Court and there, after a very careful study of the case by the court, the finding of the Commission was reversed and the claimant was awarded compensation. The employer is the appellant here.

The Commission made a finding of fact, as follows: “Claimant has been a coal miner for more than forty years. From about 1939 to 1951, claimant was, except for a period of one or two years during World War II, employed in some capacity in the coal mine of respondent employer. Claimant resigned his employment with respondent employer on June 25, 1951, and the reason given for resignation is that some misunderstandings arose when effort was made to assign claimant to a lighter job involving the transfer of another employee. Claimant had requested lighter work, or a few months’ leave from the mine, because he felt worked down and needed a rest. A day or two after resigning from employment with respondent employer claimant went to a doctor. This led to a series of examinations by various doctors in an effort to diagnose and treat claimant’s ailment. Claimant was then complaining of extreme shortness of breath and rapid fatigue upon exertion. As early as July 1951, a diagnosis of emphysema was made by the Arkansas Tuberculosis Sanatorium and the opinion was advanced that claimant was totally and permanently disabled at that time on account of emphysema. Claimant was examined on several other occasions by the Arkansas Tuberculosis Sanatorium, and also by several other medical authorities. Eventually the Arkansas Tuberculosis Sanatorium, through Dr. J. D. Riley, ventured an opinion that claimant suffered ‘Silicosis, Grade II, Advanced Emphysema.’

“Dr. Charles T. Chamberlain, Ft. Smith, Arkansas, examined claimant at least twice and concluded that ‘The cause of his (claimant’s) total and permanent disability is chronic pulmonary fibrosis and silicosis, grade one.’ Dr. Chamberlain’s findings are practically the same as those of Dr. Herbert C. Sweet, of St. Louis, Missouri. Other doctors, notably Dr. O. A. Sanders, of Milwaukee, Wisconsin, and Dr. Jesse E. Douglass, of Webb City, Missouri, make a diagnosis of no finding of silicosis. Dr. Douglass finds ‘severe emphysema,’ and Dr. Sanders finds, ‘Possible emphysema.’

“Dr. Harley Darnall, of Ft. Smith, Arkansas, called as a witness by respondent, testified at length and in detail, and though he found no silicosis as a result of his examination of claimant, he did find ‘Severe emphysema,’ and stated on cross-examination that he could not make a diagnosis of silicosis because of the absence of nodules appearing on X-ray of the lungs, but that some recognized medical authorities did maike findings of silicosis in the absence of such nodules upon X-ray examination.

“Dr. E. Z. Hornberger, Jr., of Ft. Smith, Arkansas, also called to testify by respondents, stated that Grade I Silicosis could well be present in a patient and no nodules sIíoav up on X-ray examination. Dr. Hornberger was then asked: ‘Grade I would not make a person 100 per cent disabled?’ The doctor replied: ‘That’s a hard question to answer.’ Dr. Hornberger was next asked: ‘Well, it wouldn’t ordinarily disable?’ He answered: ‘In the average case it shouldn’t.’

“The primary question for decision here is whether or not this claimant’s disability derives from silicosis.”

According to the Commission’s finding of fact, Dr. Riley, who examined the claimant on three different occasions over a period of about eight months, Dr. Charles T. Chamberlain, who actually treated the claimant for a long period of time, and Dr. Herbert C. Sweet, of St. Louis, Missouri, who had ample opportunity to examine claimant while in a hospital, all gave a positive diagnosis of silicosis. In making a finding against silicosis, the Commission appears to rely upon the testimony of Dr. O. A. Sander, of Milwaukee, Wisconsin, Dr. Jesse E. Douglass, of Webb City, Missouri, Dr. Harley Darnall and Dr. E. Z. Hornberger, of Fort Smith. If there is any substantial testimony to support the Commission’s finding, it must be found in the testimony of the four doctors just mentioned. There is no other testimony in the record indicating that the claimant does not have silicosis. In fact, circumstantial evidence of silicosis is very strong.

Silicosis is a disabling condition of the lungs caused by inhaling dust of stone, sand, or flint; among other manifestations is the formation of fibrous tissue in the lungs. See Maloy’s Medical Dictionary. The claimant had worked as a miner for more than 40 years. Conditions in appellant’s mine were such as to give rise to silicosis; others besides claimant had become disabled from silicosis while working in the mine. Although there is evidence to the effect that the appellant used precautions to keep down dust and the mine was known as a wet mine, still, there is no substantial evidence in the record that silicosis could not be contracted in the mine, hut there is substantial testimony to the contrary. A careful examination of the evidence in this case leaves no doubt but that the claimant is permanently and totally disabled due to a lung condition; according to the undisputed evidence, he has emphysema. There is no substantial evidence that emphysema of the lungs is not caused by silicosis.

Now as to whether the testimony of Drs. Sander, Douglass, Darnall and Hornberger is substantial evidence to the effect that the claimant does not have silicosis : There appears to be a report in the record signed Jesse E. Douglass, who, judging from the report, we assume is a doctor. It does not appear that he testified in the case and it does not appear that there was any opportunity for cross-examination. The record does not show the qualifications of the doctor or identify him in any manner other than the report signed, as indicated. The report deals with appellee McKown, and states: “Three years ago developed progressive dysp-neoa and weakness. For the past two years has had cough with some expectoration. Has difficulty in laying down to sleep. In 1951 had three examinations with Chest X’Bay Films at Arkansas State Sanatorium and on last examination was told he had Silicosis and Emphysema. Has had two subsequent examinations by doctors in Fort Smith, with Chest X’Bay Films and was apparently given the same diagnosis. Diagnosis: Marked Emphysem... with no Silicosis or Tuberculosis. Opinion: This man has severe Emphysem... which is totally and permawily disabeiing but I do not know that it is compensable. It did not occur as the result of his occupation. I do not know the cause of this man’s Emphysema.” The undisputed evidence in the record is that silicosis will cause emphysema. Dr. Douglass states: “I do not know the cause of this man’s Emphysema.” If he does not know the cause of the emphysema, it can hardly be said that his testimony to the effect that it is not caused by silicosis is substantial evidence. It is not clear as to how he arrived at his conclusion; there does not appear to have been any opportunity for cross-examination. Ark. Stats. § 81-1323 (c) provides that evidence before the Commission may “include verified medical reports which shall be accorded such weight as may be warranted from all of the evidence in the case.” Dr. Douglass’ report was not verified, as required by statute, however no objection was made to it; but, nevertheless, the report is only entitled to “such weight as may be warranted from all of the evidence in the case.” In view of all of the other evidence in the case, and, considering that Dr. Douglass’ qualifications are not shown; that there is no evidence of the extent of the examination he made; that there was no opportunity to cross-examine; and that the report is not verified, it cannot be said that his report warrants a finding that the claimant does not have silicosis.

Now, as to Dr. O. A. Sander, of Milwaukee, Wisconsin: There is no showing as to his qualifications except that one of the local doctors at Fort Smith testified that he knew Dr. Sander. Dr. Sander’s report is not verified, as required by statute, nor was there any opportunity for cross-examination. Even if his report had been verified, it would only be entitled to such weight as may be warranted from all of the evidence in the case. When his entire report is considered in the light of the other evidence, it is not entitled to much weight. The evidence is overwhelming to the effect that the claimant is totally and permanently disabled; the only real issue is whether the emphysema is caused by silicosis or something else. But, according to Dr. Sander’s report, there is not much wrong with the man. Of course, Dr. Sander had no opportunity to examine claimant, and merely gave his opinion on information furnished by others. He states: “There is no evidence of Silicosis. Possible emphysema, but a high grade emphysema is not suggested by the X-ray appearance •. . .” The doctor then says that emphysema does not cause disability unless extreme, and then adds: ‘ ‘ Such extreme emphysema is not suggested by this man’s X-ray films.”

Next, the Commission’s finding deals with the testimony of Dr. Harley Darnall, Fort Smith. Dr. Darnall, called as a witness by respondent, merely testified that X-ray shows no evidence of silicosis, but states that the claimant has severe emphysema, and there is scarring in the chest, and he could give no definite reason for it. The sum and substance of Dr. Darnall’s testimony is to the effect that from an X-ray he cannot find silicosis.

The next doctor giving testimony upon which the Commission based its finding, is Dr. E. Z. Hornberger. This witness, introduced on behalf of respondent, states that the claimant has all of the symptoms of silicosis except the nodules and that he does not have an asthmatic chest. The doctor further states that Silicosis, G-rade I, is not demonstrable by X-ray. On direct examination, the doctor was asked:

‘ ‘ Q. Grade I would not make a person one hundred percent disabled?

A. That’s a hard question to answer.

Q. Well, it wouldn’t ordinarily disable?

A. In the average case it shouldn’t.

Q. That is the only criterion of silicosis, from your studies and experience, that is missing — the nodules?

A. That’s right. Silicosis could be the cause of what he has in his disability at the moment as far as the examination of the individual.”

It certainly cannot be said that Dr. Hornberger’s testimony is substantial evidence to the effect that the claimant does not have silicosis. In fact, according to Dr. Hornberger, Grade I Silicosis will not show in an X-ray, and when asked whether Grade I would render a person 100 per cent disabled, he said: “That’s a hard question to answer.”

There is other medical testimony in the record, produced by respondent, that the Commission does not mention in its finding. Dr. Mendelsohn, who is an X-ray expert for the Holt-Krock Clinic, states there is no evidence of tuberculosis or pneumoconiosis, but there is marked emphysema. Although Dr. A. B. Martin, of the Holt-Krock Clinic, states that X-ray does not show sili-cotic nodules, and notwithstanding Dr. Mendelsohn’s report, the Clinic made a diagnosis of silicosis.

Dr. W. F. Rose testified that Grade I Silicosis is not disabling and that there must be nodules in the lungs before a diagnosis of silicosis can be made. He does not know whether the claimant has silicosis and has not examined him. All this doctor can say is that probably, from the reports, McKown is not disabled from silicosis, and his opinion is partially based on the report of Dr. Riley, who says silicosis is present.

It is apparent from the Commission’s finding that the reports of Dr. O. A. Sander, of Milwaukee, Wisconsin, and Dr. Jesse E. Douglass of Webb City, Missouri, were largely relied on as a basis for the finding that claimant does not have silicosis. But, as heretofore pointed out, the reports ofJ these doctors were not verified, as required by statute; there was no opportunity to cross-examine; and although the statute makes the reports admissible in evidence, if verified, they are only entitled to such weight as is warranted from all of the evidence in the case.

Many times, we have held that the finding of the Commission will be sustained if supported by any substantial evidence. Duke v. Pekin Wood Products Company, 223 Ark. 182, 264 S. W. 2d 834; Springdale Monument Company v. Allen, 216 Ark. 426, 226 S. W. 2d 42; Tri-States Construction Company v. Worthen, 224 Ark. 418, 274 S. W. 2d 352; American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41. Here, it does not appear that there is any substantial evidence to support the Commission’s finding. The evidence in this case is overwhelming to the effect that the claimant is permanently and totally disabled, and that his disability is due to the condition of his lungs; circumstantial evidence points to silicosis as the cause of the disability. All of the doctors who examined the claimant over a period of time stated that his disability is due to silicosis; evidence to the contrary is very weajk and not substantial. Whether there is substantial evidence is a matter of law. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738.

The law of this State is that workmen’s compensation cases should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; Elm Springs Canning Company v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S. W. 2d 380; Peerless Coal Company v. Jones, 219 Ark. 181, 240 S. W. 2d 647.

If this law has any meaning or force or effect, it should be applied here. The judgment of the Circuit Court is affirmed.

Justices Holt, McFaddiN and George Rose Smith dissent.