Friendly Chevrolet Company v. Pointer

1967 OK 198, 435 P.2d 579
CourtSupreme Court of Oklahoma
DecidedSeptember 26, 1967
Docket41988
StatusPublished
Cited by2 cases

This text of 1967 OK 198 (Friendly Chevrolet Company v. Pointer) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friendly Chevrolet Company v. Pointer, 1967 OK 198, 435 P.2d 579 (Okla. 1967).

Opinion

WILLIAMS, Justice.

There is involved here for review an award entered by the State Industrial Court allowing the respondent, claimant below, compensation for partial permanent disability under the provisions of the Occupational Disease Amendment to the Workmen’s Compensation Act, 85 O.S.1961, § 3(7) and (16). Parties will be referred to as they appeared before the State Industrial Court.

Claimant, aged 60, was employed by respondent as an automobile body worker and painter from December 22, 1962 until October 21, 1964. He contends that during the period of his employment he was exposed to the inhalation of toxic fumes which has resulted in his complete, total and permanent disability.

Respondent admits that claimant was employed at a hazardous employment covered by the Workmen’s Compensation Act at a rate of pay entitling him to the maximum benefits provided for in the Act, if he establishes his claim to be compensable.

The trial judge awarded the claimant total and permanent disability. The State Industrial Court sitting en banc reduced the award to 60% permanent partial disability to the body as a whole.

Respondent’s sole contention on appeal is that the evidence fails to establish that claimant’s disability, if any, was caused by breathing toxic fumes while employed by it within the provisions of the statute to which reference hereinabove has been made,

A summary of the evidence follows. Claimant is an automobile painter and body worker and had been working at that type of work for approximately 15 years before he commenced working for the respondent in December, 1962. He had a noticeable cough at the time he commenced working for respondent.

Respondent’s automobile business is located in a building in the City of Holden-ville, approximately 60 feet wide by 150 feet long. The front 40 feet is used for offices and salesroom. The middle portion, being a separate automobile repair room, is approximately 60 by 70 feet. The repair room has several large windows and a wide door. There are two small vents in the top of the ceiling of the repair shop. The rear portion of the building is used for painting and body work. This room is approximately 60 by 40 feet. The paint shop is partitioned off from the repair room with the exception of a sliding door approximately 12 feet wide. There is a window in the paint room and also an ordinary-size door, both from the outside of the building.

There is a small portable electric fan in the paint shop used for blowing paint fumes out the window or away from the car being painted. The building is not equipped with mechanical suction fans for use in exhausting the fumes to the outside of the building from the paint room or the repair shop. The sliding door between the repair shop and paint room on some occasions was open while cars were being painted.

There is evidence of effect that somewhat dense clouds of smoke sometimes accumulated in the repair shop from the exhausts of cars being repaired or driven into or from the repair shop. Some of these exhaust fumes would get into the paint room.

Claimant painted automobiles in the paint room using a spray gun.

Claimant testified that other paint shops where he had worked were equipped with exhaust fans and water screens.

During a portion of the time he was employed by the respondent the claimant operated an auto repair and paint shop in the garage of his home where he painted and repaired automobiles at night after having completed his days work for respondent.

*581 Claimant testified that he quit work because Dr. J, his own doctor, advised him to quit. He experienced spells of coughing and shortness of breath during the year 1964. He was admitted to the hospital on the recommendation of Dr. J on October 27, 1964. At the hearing he testified that he has trouble breathing and cannot sleep except sitting up; that if he lies down he has pain and pressure on his body; and that he cannot walk with speed any great distance and is unable to work. [⅝ Claimant submitted in evidence the written report of Dr. J who is his family physician and has been treating him for many years. Claimant visited Dr. J in July, 1959, 'complaining of “flu”, a fever, coughing, weakness and shortness of breath. Dr. J made “a tentative diagnosis of emphysema with probably atelectasis and bronchiectasis * * * probably due to the fact that he was a spray painter by occupation” and stated that working “under this atmosphere of fog and spray” “was not helping his lungs very much.”

' Dr. J treated the claimant again in September and December, 1963, upon complaints of fever, coughing, severe weakness and shortness of breath. Claimant’s temperature was 103.5 degrees. He treated the claimant again for the same symptoms on September 28, 1964. As above set forth, claimant was admitted to the hospital on October 27, 1964. Dr. J made “a diagnosis of pneumonia, a high fever, and the same complaints as before.” His final “diagnosis was pneumonitis, bilaterally acute, with secondary diagnosis of emphysema, mild, chronic.”

Dr. J testified of effect that he had concluded that the claimant had become physically unable to carry on gainful occupation; that in the witness’ opinion claimant probably would never be able to return to work and continue at it; that he had developed symptoms indicating he might have heart failure due to his described condition; that claimant’s “final breaking point was reached while he was working for” respondent.

Dr. P. testified for claimant that claimant had developed a chronic pulmonary condition and secondary heart strain; that he was totally and permanently disabled for his type of work or any work that required much exertion; that his disability apparently dated back to about 1957 but that most of it appeared to have developed during the two years he had been employed by respondent and that his work for respondent had aggravated a pre-existing condition.

Dr. M. testified for claimant that in his opinion claimant had chronic bronchitis and a pulmonary emphysema, secondary to the bronchitis; that he then had evidence of a heart strain, secondary to pulmonary disease; that claimant had a history of having worked for a period of time, inhaling fumes in an atmosphere where there was inadequate circulation of air; that it was the witness’ opinion that claimant’s condition of pulmonary emphysema had “been complicated, accelerated, and finally aggravated on a permanent basis, due to his occupation and work” for the respondent; that claimant, “as a result of this situation,” had become a permanently and totally disabled person for the performance of ordinary labor.

Drs. D. and L.

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Related

Friendly Chevrolet Company, Own Risk v. Pointer
1970 OK 128 (Supreme Court of Oklahoma, 1970)
Allen v. Oklahoma Turnpike Authority
1968 OK 119 (Supreme Court of Oklahoma, 1968)

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Bluebook (online)
1967 OK 198, 435 P.2d 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friendly-chevrolet-company-v-pointer-okla-1967.