Globe Indemnity Co. v. Industrial Commission

535 P.2d 1053, 24 Ariz. App. 49, 1975 Ariz. App. LEXIS 638
CourtCourt of Appeals of Arizona
DecidedMay 13, 1975
DocketNo. 1 CA-IC 1092
StatusPublished
Cited by1 cases

This text of 535 P.2d 1053 (Globe Indemnity Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Globe Indemnity Co. v. Industrial Commission, 535 P.2d 1053, 24 Ariz. App. 49, 1975 Ariz. App. LEXIS 638 (Ark. Ct. App. 1975).

Opinion

OPINION

WREN, Judge.

This review by certiorari questions the lawfulness of an award by the Industrial Commission of Arizona, finding that respondent had a compensable claim for silicosis. Specifically, three questions are presented: (1) was respondent exposed to silicon dioxide dust in his work for the petitioner employer; (2) was that work the proximate cause of respondent’s contraction of silicosis; (3) was respondent required to show that his silicosis disabled him from all work or just from returning to his former employment.

Our resolution of the third issue pertaining to total disability necessitates the setting aside of the Commission award and is accordingly, dispositive of this appeal. Though mindful of the fact that this Court does not have the authority to affirm in part and reverse in part, we will discuss the other issues presented, solely for purpose of offering the Commission some guidelines for the future disposition of this case.

Respondent, Thomas Nance (Nance), had worked for various employers in the rock and gravel industry in Arizona from 1941 to 1963. His work throughout this period involved rock crushing operations bringing him exposure to dust from the materials crushed.

From 1963 to 1973, Nance worked for the petitioner, Arizona Sand and Rock Company (Arizona Sand). He operated Arizona Sand’s wet plant until 1965, and thereafter took over the operation of its dry plant, where he remained until leaving its employ in 1973. His job at the dry plant had been to supervise the rock crushing operation from a glass-enclosed, air-conditioned booth, on top of a tower approximately fifty to seventy feet high. The actual crushing of the rock took place in tanks directly below the tower where Nance worked. It is uncontroverted that this rock crushing operation produced a certain amount of dust. The critical issues are whether the dust permeated into the booth where he worked, and if so, whether it caused his silicosis.

In 1971, Nance was examined by Dr. Austin Grant, a specialist in thoracic and chest surgery. According to the doctor, Nance complained of a persistent cough, slight [51]*51shortness of breath and some fatigue. On Dr. Grant’s recommendation, Nance was hospitalized and a bronchoscopy performed for the purpose of making a diagnosis as to his condition. The findings were inconclusive, and Dr. Grant recommended that a lung biopsy be performed. Nance did not initially consent to the additional surgery. Instead, he returned to work and continued working until January of 1973 when, because of increasing severity of his symptoms, he quit his job. He was again hospitalized the same month and a lung biopsy was performed, following which a diagnosis was made that he was suffering from silicosis and kansaii. Nance had not worked since leaving his employment with Arizona Sand.

Nance’s claim for benefits under the Arizona Occupational Disease Disability Act was denied by the petitioner insurance carrier. In protest thereof, hearings were held in July and September of 1973, and an award was entered in September of 1973, finding that he had a compensable claim for silicosis and that the carrier was liable for benefits provided for under the Act. The award was affirmed by the Commission on review, and petitioners thereafter filed their petition for writ of certiorari with this Court.

Under the Occupational Disease Disability Act, A.R.S. § 23-1101 et seq.,1 benefits are provided for workmen who become afflicted with diseases caused by conditions which are normal and constantly present and characteristic of their particular occupations. In re Mitchell, 61 Ariz. 436, 150 P.2d 355 (1944). Silicosis is one such disease. For it to be compensable, the following elements must be established by a claimant:

That he has silicosis as defined by A.R.S. § 23-1102(10);2
Proximate causation, as defined in A.R. S. § 23-1103, between the disease and his employment;3
Total disability resulted within two years from the last day upon which he actually worked for the employer against whom compensation is claimed. A.R.S. § 23-1107(A) (3)

In addition to the foregoing requirements, the following limitation on an employer’s liability.is recognized:

“[T]he only employer liable shall be the employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide . . . dust during a period of sixty days or more.” A.R.S. § 23-1105

As to the claimant’s burden of proof in establishing exposure to “harmful quan[52]*52tities” of silicon dioxide dust, the following statutory presumption is provided:

“Proof of the exposure to silicon dioxide dust . . . for a period of not less than one thousand two hundred work shifts in employment in this state, with proof of total disability from silicosis . . . shall be prima facie evidence of exposure to harmful quantities of such dust during all of such period.” A.R.S. § 23-1107(C)

The consensus of opinion from the physicians testifying before the Commission reflects that silicon dioxide dust is in essence “rock dust”. The record shows no dispute as to this proposition. Moreover, there is no argument with the fact that Nance had contracted silicosis within the meaning of A.R.S. § 23-1102(10). See note 2, supra. The precise question is whether he contracted the disease from his work with Arizona Sand. To that point petitioners assert that there is no evidence showing that Nance was exposed to silicon dioxide dust in his work environment. They liken the situation here to that in Utah Const. Co. v. Berg, 68 Ariz. 285, 205 P.2d 367 (1949). In Berg, the court held that evidence that a workman had worked in “dusty trades” was insufficient to invoke the statutory presumption of exposure to “harmful quantities” of silicon dioxide dust, where it was not shown that the dust the workman was exposed to was silicon dioxide dust. Accord, Inspiration Consol. Copper Co. v. Industrial Commission, 85 Ariz. 204, 335 P.2d 416 (1959).

Initially, we note that the Industrial Commission is presumed to have considered all relevant evidence in making an award. Scott v. Industrial Commission, 11 Ariz.App. 20, 461 P.2d 499 (1969). On review, the appellate court does not weigh the evidence but considers it in a light most favorable to sustaining the findings and award of the Commission. Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lewis v. INDUSTRIAL COM'N OF ARIZONA
614 P.2d 347 (Court of Appeals of Arizona, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
535 P.2d 1053, 24 Ariz. App. 49, 1975 Ariz. App. LEXIS 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/globe-indemnity-co-v-industrial-commission-arizctapp-1975.