Flasche v. Bunker Hill Company

363 P.2d 1024, 83 Idaho 420, 1961 Ida. LEXIS 203
CourtIdaho Supreme Court
DecidedJuly 18, 1961
Docket8971
StatusPublished
Cited by17 cases

This text of 363 P.2d 1024 (Flasche v. Bunker Hill Company) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flasche v. Bunker Hill Company, 363 P.2d 1024, 83 Idaho 420, 1961 Ida. LEXIS 203 (Idaho 1961).

Opinion

*422 SMITH, Justice.

This appeal is from an order of the Industrial Accident Board denying appellant’s claim for workmen’s compensation benefits.

Appellant seeks recovery of compensation under either the workmen’s compensation law, contending that his affliction of pulmonary tuberculosis was accidently caused or aggravated by exposure to silica dust, I.C. § 72-201, or the occupational disease compensation law on the ground that his malady is silicosis complicated with tuberculosis, I.C. § 72-1220.

Appellant in his claim for compensation alleges an accident about November 14, 1958, while mining underground as a miner for respondent, and describes occurrence of the accident as “sudden unexpected silicosis complicated with tuberculosis,” which injured his lungs.

Appellant in his petition for hearing pleads the same facts and, additionally, that he became totally disabled for work November 15, 1958, I.C. § 72-1205, and will continue to be disabled, because of silicosis complicated with tuberculosis of the lungs (I.C. § 72-1220). Respondent denied those allegations. The Industrial Accident Board, after a hearing, entered its order denying appellant’s claim for compensation, from which order appellant has appealed.

Appellant, 54 years of age, followed hard rock mining for intervals during a period of nearly 20 years preceding November 14, 1958, the date of alleged disablement. From October 10, 1953, to November 14, 1958, inclusive, he mined underground for respondent. During his working career as a hard rock miner the Board found that appellant was more or less exposed to inhalation of silica dust (I.C. § 72-1217).

The Board’s ultimate findings and rulings are:

“That appellant fails to prove by preponderance of the evidence that his disablement is the result of silicosis, *423 or that silicosis is an essential factor complicating his tuberculosis;
“That there is no substantial evidence tending to prove an accident;
“That appellant is not entitled to recover upon his claim under either the occupational disease compensation law or the workmen’s compensation law; and
“That appellant’s disability is due to active pulmonary tuberculosis which was preceded by pleurisy, each a general, not an occupational, disease.”

Appellant assigns as error the Board’s failure to find that he is totally disabled for work because of silicosis complicated with tuberculosis. Appellant also contends that the Board erred in denying recovery under either of the theories advanced, i. e., first, that appellant suffered accidental tuberculosis brought about by sudden and unexpected action of silica dust, or second, that appellant’s disablement is due to silicosis complicated with tuberculosis.

The assignments, since they question the sufficiency of the evidence to sustain the Board’s order of denial of compensation benefits, require a review of the evidence for the purpose of determining whether there is sufficient competent evidence to sustain the Board’s findings and order.

Appellant’s testimony relates to his work record and termination of his employment because of his adverse physical condition; also to his various physical examinations by physicians. After such an examination and certain tests during November 1958, he went to the Idaho State Tuberculosis Hospital at Gooding, arriving there during January 1959. At the time of the hearing he was an outpatient of that hospital.

Appellant produced as his medical witness Dr. Paul M. Ellis, a physician and surgeon of some years’ experience with special training in the field of silicosis. Commencing with the year 1941 and in the years 1942, 1947, 1948, 1951, 1952, 1955, 1957, and until October 20, 1959, the day before the hearing in this proceeding Dr. Ellis, and at times his associates Drs. Bonebrake, Hunter and Gnaedinger, made examinations of appellant, including x-rays of his chest.

All of the doctors, except Dr. Hunter after the examination of 1951, diagnosed appellant’s affliction as silicosis one-minus. Dr. Hunter, 1951, and Drs. Ellis and Gnaedinger, in 1952, graded the silicosis zero-none.

Dr. Ellis explained that in 1951 and 1952 the medical profession changed the method of grading silicosis; up to that time the profession had “this [grade] one-minus as a means of determining that they [patients] had increased fibrosis without definite nodulation,” but that such a showing, indicated by x-ray, is common to all forms of pneumoconiosis. Continuing, Dr. Ellis *424 stated: “because we were bewildering everybody by the silicosis one-minus * * * we didn’t try to grade any of them unless they had definite nodulation,” characteristic of silicosis. He then stated that x-rays of appellant’s chest taken in 1952 and previous years showed no definite evidence of silicosis.

Dr. Ellis again took x-rays of appellant’s chest in 1957; also on October 20, 1959, the day before the hearing; referring to the 1957 x-rays he thought he would call the silicosis grade one; then he qualified such statement saying, “It is not a far advanced one, it is one in which the gradation between the state we call linear fibrosis and nodulation is beginning to take place.”

The Chairman of the Board propounded the following question to the doctor:

“ * * * In view of your explanation on the change of system [grading], is there anything in your record, or in your recollection, at any time during your examination of this claimant from which you interpreted from the x-rays a nodulation?”

Dr. Ellis responded:

“ * * * at no time in the x-rays which I have examined has the nodulation been more than minimal. It couldn’t possibly be graded more than a silicosis one, and I do not have x-rays which demonstrate that.” (Emphasis supplied.)

The record shows that such statement included the doctor’s examination of the x-rays of appellant’s chest taken October 20, 1959, the doctor stating, however, that superimposed inflammation of tuberculosis may have been responsible in part for the markings in those films as not being “characteristic of silicosis grade one.”

Respondent produced Dr. K. A. Tyler, a chest physician of some years’ experience, in charge of the Idaho State Tuberculosis Hospital at Gooding. He also was shown to be experienced with silicosis and silico-tub erculosis.

The doctor knew appellant as a patient in that hospital, had studied his case, had examined x-rays taken as far back as 1951, and as late as November 25, 1959, just before appellant’s discharge from the hospital as an outpatient. Referring to the several x-rays, the effect of Dr. Tyler’s testimony is as follows:

The 1951 x-ray, while showing a healed calcified complex, did not show evidence of any active pulmonary disease. The 1952 x-ray shows fibrotic changes, indicating pleurisy with pleural reaction and adhesions formed to the diaphragm. The 1953 x-rays show diminution of the pleural reaction.

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Bluebook (online)
363 P.2d 1024, 83 Idaho 420, 1961 Ida. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flasche-v-bunker-hill-company-idaho-1961.