Miller v. American Steel & Wire Co.

97 A. 345, 90 Conn. 349, 1916 Conn. LEXIS 74

• Court: Supreme Court of Connecticut
• Decided: April 19, 1916
• Status: Published

Opinions

Beach, J.

An examination of the finding, in the light of the commissioner’s memorandum of decision, convinces us that for the purposes of this appeal we must assume that the claimant’s incapacity resulted from a gradual process of lead poisoning arising out of the claimant’s employment; that it cannot be traced to any fortuitous or unexpected event which can be located in point of time and place; and that it is not the result of a lesion produced by external violence or internal strain. The record, therefore, does not present the question whether our Workmen’s Compensation Act gives compensation for death or incapacity resulting from disease caused by accidental injury. It presents the very different question whether our compensation system includes occupational diseases as well as industrial accidents. More specifically, the question is whether the words “personal injury . . . arising out of and in the course of his employment,” in our Act, were intended by the General Assembly to cover disease arising out of and in the course of the employment.

There is no reference whatever to disease in our Act, and although the case nominally turns upon the proper construction of the single word “injury,” the real issue is whether the important subject-matter of industrial diseases shall be introduced by judicial construction into a statute which does not mention the subject, or contain any provisions for dealing with the problems peculiar to that subject. It is to be regretted that the appellee was not represented by counsel in this court, and that we are compelled to pass upon a question of such importance without the benefit of full argument upon both sides.

We have said in Powers v. Hotel Bond Co., 89 Conn. 143, 148, 93 Atl. 245, that our Act was undoubtedly passed with full knowledge of other similar Acts of common purpose; and we have thus recognized the fact that these Workmen’s Compensation Acts have arisen out of an industrial condition common to all manufacturing communities, and in a broad sense were intended to remedy a mischief common to all. It is therefore of some, though not of controlling, importance to observe what has been the course of legislation in other States and countries with respect to including occupational disease in Workmen’s Compensation Acts. From an examination of the abstracts of forty foreign Workmen’s Compensation Acts contained in the Bulletin of the United States Department of Labor issued in 1914 (No. 126), it appears that twenty-seven of them are on their face limited to injuries accidentally sustained, nine use the word injury without qualification, and four expressly mention both injury and disease. Out of the twenty-seven countries whose Compensation Acts are limited to injuries accidentally sustained, it is noted that four have separate Acts providing for workmen’s sickness insurance. In this country, according to a Digest of Workmen’s Compensation Laws published by the Workmen’s Compensation Publicity Bureau of New York City in 1915, such Acts are in force in thirty-one States and two Territories, and there is also an Act of Congress covering employees of the United States government. Of these Acts, twenty are expressly limited to accidental injuries; fourteen use the term “personal injuries” without qualification, but of these, four expressly exclude disease except as it results from injury. None of them expressly include disease. Evidently, the general course of legislation abroad and in this country has been to deal with industrial accidents as a subject separate and distinct from occupational disease.

Of the ten Acts in this country which do not on their face exclude occupational disease, two have been authoritatively construed to exclude it. Industrial Commission v. Brown, 92 Ohio St. 309, 110 N. E. 744; Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N. W. 485, The California Act has received a similar administrative construction. Decisions of the Industrial Accident Commission of California, Vol. 1, No. 5, p. 11. On the other hand, the Massachusetts Act has been construed to include occupational diseases. Hurle’s Case, 217 Mass. 223, 104 N. E. 336; Johnson’s Case, 217 Mass. 388, 104 N. E. 735. The Act of Congress has been similarly construed by the solicitor of the Department of Labor, reversing a former ruling on that subject. In re Jule, Op. of Sol. of Dept. of Labor, p. 261 (April, 1915). Thus, among what may be called the doubtful States, the preponderance of opinion, so far as any has yet been expressed, seems to be against importing occupational diseases into Workmen’s Compensation Acts by the process of judicial construction.

Turning now to the history of our own Act, the first affirmative action taken by the General Assembly was the passage of a resolution in 1911 providing for the appointment of a commission "to investigate and report to the next session of the General Assembly upon the legality, advisability, and practicability of establishing a state insurance department, or other form of state insurance, as a means of providing compensation for workmen and others injured through accidents occurring in industrial occupations.” The commission appointed pursuant to this resolution presented its report, entitled "The Report of the Connecticut State Commission on Compensation for Industrial Accidents, to the General Assembly of 1913,” and the bill recommended by the commission was limited to compensation for "personal injuries from any accident arising out of and in the course of his employment.” Several other bills, including one representing the views of the association of manufacturers, and another the views of the state federation of labor, were presented to the General Assembly. None of them made any reference to occupational disease, and in the course of many days of committee hearings reported and filed with the State Librarian, we find no reference to occupational disease and none appears in the bill as finally adopted or in the amendments of 1915.

It follows that if we construe the Act as covering compensation for death or incapacity arising from occupational disease we shall introduce into it a most important subject, which, so far as we can ascertain from the public documents, was not considered by the legislature in this connection. In fact the economic importance of the inclusion of disease in an Act which contains no special provisions on the subject, can hardly be estimated.

In the absence of any definition of occupational disease, the Act would include all diseases arising out of and in the course of the employment, and the word injury, if it includes the contraction of disease, includes also the aggravation of disease. So construed, our Act might almost be said to give compensation for the common fate of all who work because they must. The result would be to increase very greatly the cost of compensation insurance, and might either discourage the acceptance of the Act by employers or make it difficult for any but the young and strong to obtain employment. It may be added that in Germany, and, so far as we know, in other countries where a comprehensive scheme of workmen’s sickness insurance is in force, the workman is required to contribute toward the cost of the insurance. We ought not to import into the Act by construction a subject-matter carrying such possible consequences, unless convinced that the General Assembly, notwithstanding its omission to refer to the subject, actually intended to include it.

It seems more reasonable to suppose that in framing an elective system of compensation for the employer and the employee to accept or reject, the General Assembly should attempt to state the essential conditions of the bargain in terms, so that the parties could understand the consequences of their election. And when we find in such a statute, and in the legislative proceedings leading to its adoption, no mention of so important a subject as industrial sickness insurance, the reasonable inference is that the General Assembly probably did not intend to include the cost of such insurance in the proposition which it submitted to employers for their acceptance.

This seems still more probable, because it appears from chapter 14 of the Public Acts of 1913, p. 1634, entitled “An Act concerning Reports of Occupational Diseases,” that the General Assembly had the subject of occupational disease under consideration at the very time when the Workmen’s Compensation Act was pending before it; and the action which it took in respect of that subject was to require physicians to report cases, not to the compensation commissioner of the district, but to the commissioner of the bureau of labor statistics. This would indicate that the General Assembly intended to deal separately and at some future time with the subject of occupational disease.

There are, moreover, certain matters of important detail which one would naturally expect to find in a Compensation Act dealing with occupational disease, and which are not found in our Act. In the first place, the causal relation between disease and employment cannot as a rule be satisfactorily established except by expert testimony, which is likely to be beyond the reach of the claimant. In this connection the following extract from the decision of the commissioner is pertinent: “As pointed out by Dr. W. Gilman Thompson in the pioneer work in this country on occupational diseases, published only within the last few months, ‘occupational diseases are not new diseases from the ultimate pathological standpoint’ (page XXIV). He illustrates this by noting that the arterio-sclerosis or chronic nephritis produced by lead poisoning does not differ from that condition when induced by alcoholism or other toxic causes, and he further instances the case of bone necrosis from phosphorus poisoning, which he states does not differ from necrosis of other origin. . . . As said by Professor Thompson again it may be ‘ claimed that the workman is the victim of chronic lead poisoning; but are his arterio-sclerosis and nephritis due exclusively to lead poisoning, or are alcohol, syphilis or gout the underlying causes? Is his neuritis due to arsenic or alcohol? ... Was he tuberculous before he undertook work in a pottery, or did his work contribute to the disease? . . , Are his chronic bronchitis, anemia and malnutrition due to chronic gas poisoning acquired as a garment presser, or are they due to defective hygiene at home, poor food, lack of exercise, and the strain and anxieties of poverty? Such are the types of questions which constantly arise in connection with occupational diseases.’ (Thompson, pp. 48 and 49.)” If the General Assembly intended to include occupational diseases in the Act, some way would doubtless have been provided in which a claimant could get the expert evidence necessary to prove that the disease arose out of the employment.

There are other difficulties which this Act does not pretend to meet. Take the case of death or incapacity resulting from an occupational disease gradually acquired while at work for different employers. Should the last employer bear the whole burden? Again, suppose an employer, or his insurer, undertakes to protect himself by having his workmen inspected at stated intervals and by discharging those who seem likely to become incapacitated from disease. Would not some provision have been made to prevent the industry from thus escaping the burden of the disease which it creates? Indeed, the principle of holding an employer for the consequences of disease caused by the employment does not fit very well into our Compensation Act, for it is inconsistent with the unrestricted right to terminate the obligation by discharge, and it is also inconsistent with the unrestricted right of the employer to revoke his acceptance of the Compensation Act at any time, and in respect of any employee, as provided in § 3 of Part B. Public Acts of 1913, Chap. 138, p. 1737. It seems very unlikely that the General Assembly, if it intended to include compensation for industrial disease in the Act, should have passed over these matters in silence, and should have constructed the Act on the theory that adherence to the compensation scheme was a contract between the employer and each individual employee, which either party could terminate at will.

The points to which attention has been called were well understood by students of the subject, for in 1906 the English Act was amended so as to include for the first time “industrial diseases.” Section 8, subsection 1, of the amended Act, includes provisions for determining what are “industrial diseases,” for the impartial expert determination of the cause of the disease by certifying surgeons appointed for that purpose, for the equitable distribution of the award among several employers in cases of progressive diseases and shifting employment, and for recoveries within a limited time after discharge or suspension from employment when the death or incapacity arose from such employment. As this English Act was doubtless before the committee of the General Assembly, the omission of all of its provisions which were specially adapted to deal with the subject of occupational disease, is of great importance as affecting the question of probable legislative intent.

On the other hand, it may be said that the omission of the words “by accident,” which in the English Act qualify the words “personal injury,” is also of great weight; and the Massachusetts court so considered it in construing their own Act, saying that the term “personal injury” was an inclusive term, and that the omission of the qualifying words “by accident” were intended to enlarge the meaning of the term injury. Hurle’s Case, 217 Mass. 223, 104 N. E. 336. That was a fair argument as applied to the Massachusetts Act, for the corresponding sections of the English Act and the Massachusetts Act are similar in form except for the omitted words; the Massachusetts Act reading as follows: “If an employee . . . receives a personal injury arising out of and in the course of his employment, he shall be paid compensation,” etc. The words “personal injury” are here coupled directly with the grant of compensation, without any qualification direct or indirect. But that is not so in our Act, of which § 1 of Part B (Public Acts of 1913, Chap. 138, p. 1735) reads thus: “When any persons in the mutual relation of employer and employee shall have accepted Part B of this Act, the employer shall not be liable to any action for damages on account of personal injury . . . arising out of and in the course of his employment or on account of death resulting from injury so sustained; but the employer shall pay compensation on account of such injury in accordance with the scale hereinafter provided,” etc. This language was not changed by the amendment of 1915. Public Acts of 1915, Chap. 288, p. 2115. Obviously the word “injury” is not left without qualification in our Act. Compensation is given for “such injury,” and the reference is to injuries in respect of which the employer is exempted from actions for damages because of the mutual acceptance of Part B of the Act. The only other place in the Act where the phrase “personal injury . . . arising out of and in the course of his employment” is found, is in Part A of the Act, dealing with the employer’s liability at law, and the context there is as follows: “Defenses abolished. In an action to recover damages for personal injury sustained by an employee arising out of and in the course of his employment, or for death resulting from injuries so sustained, it shall not be a defense,” etc. It cannot make any substantial difference in the construction of the term “injury” as used in that context, whether the words “by accident” are inserted or omitted.

This is the crucial point in the literal interpretation of our Act. The injury to be compensated is not defined except by the words “such injury,” meaning, as the context says, a personal injury arising out of and in the course of the employment in respect of which the employer is exempted from actions for damages in case of the mutual acceptance by employer and employee of Part B; and in respect of which he is to be deprived of his so-called common-law defenses unless he does accept Part B. The point is not merely a verbal one. The Act is in form elective. In Part A it takes away the employer’s common-law defenses, and in Part B it offers him a compensation scheme whose disadvantages are more or less nicely balanced against the alternative of facing common-law actions for damages with a crippled defense. It was quite to be expected that the compensation scheme should cover the same ground as the common-law action for damages, and the language of the Act was, we think, plainly intended to accomplish that result.

Since the common-law action for damages, which was founded on the master’s negligence, never attempted to cover the typical case of an occupational disease caused by continued exposure to the ordinary and known risks of the employment, the inference is plain that the alternative compensation scheme was not intended to cover such diseases. As already pointed out, the Act, because of its entire omission to refer to the subject, must include all diseases arising out of and in the course of the employment, or none. And if it was not intended to cover the typical occupational disease, it was clearly not intended to cover any except such as are the direct result or natural consequence of an accidental injury.

Finally, and notwithstanding the discussion on that point contained in Hurle's Case, 217 Mass. 223, 104 N. E. 336, the term “personal injury,” as used in common speech, especially in connection with actions for damages, is more often intended to exclude disease than to include it. It is evidently not used in this Act in the legal sense which would include a libel or the seduction of a minor daughter, but in the popular sense of a bodily injury sustained while ip the course of the employment; and in § 20 the phrase “reports of accidents” is used as synonymous with ‘‘reports of injuries.”

Other language of the Act also lends countenance to the view that the injuries contemplated by the Act were those resulting from a definite occurrence which could be located in point of time and place. Section 7 as amended (Public Acts of 1915, Chap. 288, § 3, p. 2117) provides that any “employee who has sustained an injury in the course of his employment shall forthwith notify his employer”; dependency is to be determined as of the time of the injury and not as of the time of the resulting incapacity; the average weekly wage is to be calculated with reference to the “twenty-six calendar weeks immediately preceding that during which he was injured”; compensation for fatal injuries is given only when death results within two years “from date of injury”; the notice required by § 21 as amended in 1915 must be given within one year from the date of the injury, and state “in simple language the date, place, and nature of the injury.” These are some of the statutory conditions upon which the compensation or its amount is made to depend, and they are not workable on the assumption that the word injury was intended to include disease, because it is notorious that the typical occupational disease is not an injury which can be said to have been “sustained” at a given date. If, for the purpose of escaping this difficulty, it is attempted to substitute the date of the incapacity for the date of the injury, it will be necessary to repeal and reconstruct a considerable portion of the Act.

It may be said that in point of logic, occupational disease is as proper a subject for compensation as industrial accident. Upon that point we express no opinion, except such as we have already intimated. It is certain, however, that the opinions of to-day on that subject are more advanced than those of 1913, and that occupational disease was generally recognized, and by the same General Assembly specifically recognized, as a subject presenting its own separate problem. The Workmen’s Compensation Act was our first legislative experiment in substituting collective justice regardless of fault, for justice between individuals based upon compensation for legal wrong; and it may be doubted whether the General Assembly of 1913 could have been pushed to the point of including occupational diseases in that experiment.

That, however, is not the question before us. We have only to determine whether the General Assembly, notwithstanding its failure to expressly include the important subject of occupational disease in the Act, intended to include it under the words “personal injury . . . arising out of and in the course of his em ployment,” and for the reasons indicated we infer that it did not so intend.

There is error, the judgment is set aside and the cause remanded to the Superior Court for the rendition of a judgment vacating the award of the compensation commissioner.

In this opinion Prentice, C. J., Thayer and Roraback, Js., concurred.