Marcus v. Steel Constructors, Inc.

434 S.W.2d 475, 1968 Mo. LEXIS 801
CourtSupreme Court of Missouri
DecidedNovember 12, 1968
DocketNo. 52703
StatusPublished
Cited by7 cases

This text of 434 S.W.2d 475 (Marcus v. Steel Constructors, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcus v. Steel Constructors, Inc., 434 S.W.2d 475, 1968 Mo. LEXIS 801 (Mo. 1968).

Opinion

J. MORGAN DONELSON, Special Judge.

This is a workmen’s compensation case wherein maximum benefits were awarded in the death of Eddie J. Marcus to his widow and sixteen year old daughter for a total of $20,580.31. On appeal to the Circuit Court the award was affirmed. The employer and insurer appeal from the judgment rendered.

At the time of the death of Marcus, § 287.240(4) (b), RSMo 1959, V.A.M. S., contained no provision that death benefits payable to a minor dependent would terminate even though the minor dependent might die, marry, or attain the age of eighteen years. The entire amount of the award is therefore vested; we have jurisdiction of the appeal. Article V, Section [477]*4773, Constitution of Missouri 1945, V.A.M.S.; Gennari v. Norwood Hills Corporation, Mo., 322 S.W.2d 718. In 1965 the above section was amended by the Legislature to provide for such contingencies.

The findings of fact of the Referee were adopted by the Industrial Commission and in part found that Eddie J. Marcus “ * * * contracted an occupational disease as defined by section 287.067, RSMo 1959, arising out of and in the course of his employment with Steel Constructors, Inc., said occupational disease being pancytopen-ia and hyperplastic bone marrow, and that said occupational disease was caused by an exposure to toxic fumes containing benzol, commencing in March 1960, and subsequent exposures to toxic fumes from welding galvanized metal and cutting and burning through layers of paint with an acetylene torch, to which fumes said employee had become sensitized during his employment with Steel Constructors, Inc., until November 1963, when he became totally disabled as a result of said occupational disease and that as a further direct result of said occupational disease employee died on April 2, 1964.”

Eddie J. Marcus was employed for some seventeen years as an iron worker, welder, and foreman by Steel Constructors, Inc. He continued his employment until November 27, 1963, except for brief periods while he was in the hospital. He died on the date above indicated, and he was survived by Pauline R. Marcus and Sharon Lee Marcus, his widow and sixteen year old daughter.

Prior to March, 1960, Marcus had been in good health, and he was a good workman for his employer. This was substantiated by fellow worker, Delbert Lewis, and Marcus’ wife, Pauline, who testified that thereafter “he did not have the pep and energy he had before and he had numerous complaints.” In March, 1960, Marcus and others, in the course of their employment were working at the Inter-Collegiate Press building in Johnson County, Kansas. The work involved the removal of an old roof and the erection of steel structure for an additional floor on the existing one-story building. The roof was of gravel and creosote or tar composition. An undetermined number of exhaust pipes or vents were on the roof of this building. They were also described as ventilating ducts which were staggered in various locations on the roof. The plant at this time was in operation. Marcus stated in his deposition that there was something flying around in the air that would “just burn the devil out of your face and hands.” He did not know what caused it while they were chopping off the old roof, and he did not know what was “coughed out” of the ventilating ducts. Marcus worked on this job for two days until his hands, face and neck “swelled up real bad”, and he left the job. Some of the other workmen were affected with a stinging, burning sensation to their faces. One witness described it as similar to sunburn. Other workmen were not affected at all. On March 26, 1960, Marcus consulted Dr. Alvin Silvers, his family doctor, who found an acute facial and neck irritation or rash which he diagnosed and treated as contact dermatitis. Sometime during May, 1960, he returned to the same job, but he could work only one-half day. He again had a burning of his face within two hours after returning to the work. There were three occasions when he worked on this particular plant roof. Each time his hands and face would become red and swollen. He requested a transfer to other work at another location which was granted by his employer. Dr. Silvers continued to see and treat him several times in 1960, for various complaints, but primarily for what he thought was contact dermatitis.

Fellow worker, Harry George Waibel also testified by deposition. He was acquainted and worked with Marcus on the job in March, 1960. In fact he replaced Marcus on the Inter-Collegiate Press job as foreman. He stated that he had observed Marcus’ face and hands at times [478]*478when they would be red and swollen. He noticed the exhausts or vents on the roof also. He indicated that if you stood next to one of the vents you could feel heat, but you could not see anything. There was nothing unusual about the roof and there was nothing blowing in the air. He did not form an opinion as to where the substance which caused the discomfort came from, except that it was evidently something on the roof. He did not know whether the cause was in the roof itself, or something that came out of the ducts. The work on the roof was done out in the open air with the wind blowing, and the heat that came out of the ducts was dissipated by the wind.

In April, 1961, Marcus in his employment installed a solar screen in a dusty building at Liberty, Missouri. He there suffered excessive nosebleed which he was unable to arrest without medical assistance. His symptoms were shortness of breath, pain in calf muscles of his legs, and a bleeding tendency which Marcus said dated from March, 1960. He was subsequently admitted to a hospital where necessary surgery was performed to stop the bleeding. During his hospitalization Marjorie S. Sir-ridge, M.D., who specialized in and limited her practice to hematology was called for consultation and treatment of Marcus. At various intervals she continued to treat him until his death. Marcus’ hospital laboratory report was examined by Dr. Sir-ridge who determined that in addition to the nosebleed Marcus had pancytopenia or anemia. Bone marrow studies were made and it was found to be hyperplastic, meaning increased cellularity in the marrow. It was, in other words, an abnormal bone marrow with an absence of any primary hematologic disease, such as cancer, leukemia, sarcoma, or myelofibrosis. It was her opinion that a toxin had affected the bone marrow. She treated him, and he was released from the hospital on May 2, 1961. Dr. Sirridge continued treatment and she found a continued improvement in his blood condition. In April, 1962, it was her opinion Marcus’ blood was completely normal. It was also her opinion that the bone marrow had not been so greatly damaged that it could not recover by the use of stimulants.

Witness Delbert Lewis in March, 1960 worked under Marcus as his foreman at the Inter-Collegiate Press Kansas plant. He described in similar fashion the plant or building and the work performed. He confirmed that Marcus’ hands and face “swelled real bad” after working on the roof of the building for about two days. He also worked with Marcus in May when he returned to the job, and again observed that Marcus had the same reaction as on the first occasion. He remembered the ducts or vents on the roof, but he likewise did not know their purpose or function. He was also working with Marcus at Liberty in April, 1961, when Marcus suffered the nosebleed. He stated that he and Marcus did a lot of welding of galvanized metal and inhaled these fumes at various times between March, 1960, and November, 1963.

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Bluebook (online)
434 S.W.2d 475, 1968 Mo. LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcus-v-steel-constructors-inc-mo-1968.