Shipman v. Employers Mutual Liability Insurance

125 S.E.2d 72, 105 Ga. App. 487, 1962 Ga. App. LEXIS 964
CourtCourt of Appeals of Georgia
DecidedFebruary 15, 1962
Docket39178
StatusPublished
Cited by27 cases

This text of 125 S.E.2d 72 (Shipman v. Employers Mutual Liability Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shipman v. Employers Mutual Liability Insurance, 125 S.E.2d 72, 105 Ga. App. 487, 1962 Ga. App. LEXIS 964 (Ga. Ct. App. 1962).

Opinions

Eberhakdt, Judge.

E. L. Shipman applied to the State Board of Workmen’s Compensation for a hearing to determine his right to compensation on account of a loss of hearing in each [488]*488of his ears which he asserted had resulted from his employment as a flight-line mechanic at Lockheed Aircraft Corporation. Upon the hearing, it appeared from the evidence that claimant had been continuously employed as a flight-line mechanic with Lockheed since some time in 1953 until he was shifted to another job in August of 1959. His work had required that he work in close proximity to jet aircraft engines, which are operated intermittently for test purposes, and which while in operation produce terrific noises. While not continuous, the operation of the engines was frequent and regular, occurring each day. In January, 1959, claimant began to notice a loss of hearing. Employees of the plant were given medical checkups at fairly regular intervals, and his loss of hearing began showing up on audiometer tests made by the plant medical department. From January through June, 1959, successive tests disclosed progressive and increasing loss of hearing, which were rated by the audiometer test as being 51 per cent in the right ear and 34 per cent in the left ear by June. Medical witnesses for both the employee and the employer testified at the hearing, and they were in agreement that “for all practical purposes” claimant had lost his hearing in the right ear, though the loss in his left ear was somewhat less; that, as to his right ear, he could not hear sound ordinarily and normally produced, as by conversations and the like, though it was possible for him to hear sound at ranges of pitch out of the usual and ordinary. Claimant’s expert witness, an otologist, testified that the hearing loss was typical of “nerve deafness due to noise trauma.” The company medical director testified that it was his opinion that claimant’s hearing loss was unusually rapid “due to a loss produced by noise.”

The insurer defended on the ground that there had been no accidental injury within the meaning of the act, and further that even though it be found that such had occurred, it was not compensable under the provisions of Code Ann. § 114-406 (r) as amended (Ga. L. 1955, p. 212; 1958, p. 360).

The issue before us, then, is whether the result (here, loss of hearing) of a series of trauma (here, intermittent noises of the jet engines over a period of time) is an accidental injury, and, [489]*489if so, whether it is compensable if the loss of hearing is "for all practical purposes” complete.

We have heretofore held that “a traumatic disease, as distinguished from an ideopathic [sic] disease, is one which is caused by physical injury and is compensable.” (Emphasis supplied.) Griggs v. Lumbermen’s Mutual Cas. Co., 61 Ga. App. 448, 450 (6 SE2d 180), aff’d 190 Ga. 277 (9 SE2d 84). Moreover, it is settled that a physical impact is not a necessary prerequisite to an “injury,” the result on the employee being the test. Williams v. Maryland Cas. Co., 67 Ga. App. 649 (2, 3) (21 SE2d 478); Georgia Power Co. v. Reid, 87 Ga. App. 21 (74 SE2d 672); Orkin Exterminating Co. v. Wright, 92 Ga. App. 224 (88 SE2d 205); Ideal Mut. Ins. Co. v. Ray, 92 Ga. App. 273 (88 SE2d 428); 1 Larson, Workmen’s Compensation Law, § 38.61 (1952). The medical testimony here indicated that each time an engine was run on the flight line a traumatic reaction occurred in claimant’s ear.

In Kansas, where there is a statute substantially identical with ours in this respect, a similar situation was presented in Winkelman v. Boeing Airplane Co., 166 Kan. 503 (203 P2d 171). The employee in that case was an assistant instructor of guards at the company pistol range practice. In that employment he was subjected to hearing pistol shots on the range each working day for 18 months. His hearing failed, and he filed a common-law action against his employer to recover for his permanent loss of hearing. The company defended on the ground that plaintiff’s sole remedy was under the workmen’s compensation statute. The court agreed, holding, as had been established by the medical testimony, that each pistol shot had a traumatic effect upon the hearing mechanism of claimant’s ears, and further holding that it was not necessary to point to the particular shot that had caused his deafness, applying the “result on the employee” test used in Williams v. Maryland Cas. Co., 67 Ga. App. 649, supra. In the course of the opinion the court observed: “Manifestly each pistol retort or explosion, at the time it occurred, caused some injury and contributed to the permanent injury. The proof of injury was probably as definite, relative to time, place and circumstances, as the na[490]*490ture of the case permitted. At least we think it was as definite as the particular circumstances required. The statute does not mention the word ‘time’ except that the injury by accident must arise in the course of the employment. It did so arise. If injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.”

More recently the Supreme Court of Tennessee had before it the case of Brown Shoe Co. v. Reed (Tenn.) 350 SW2d 65, arising under their workmen’s compensation act which, insofar as is relevant here, is identical in its terms with ours. There the claimant was employed in the operation of a machine in trimming the soles of heavy shoes. In doing that work the repeated jerking and pulling of the left hand and arm by the operation of the machine over a period of months resulted in a numbness of the fingers, loss of sensation, and atrophy. He reported this condition to the First Aid Office of his employer and afterwards sought the advice of his physician. Upon the hearing the doctor testified that the repeated jerking and pulling of the arm and the resulting repeated movement of the ulnar nerve across the end of the bone was, in effect, a separate traumatic injury to the nerve resulting in a permanent injury. The employer there defended, as here, upon the ground that there had been no accidental injury. However, the board found to the contrary, and in affirming the award for compensation the Supreme Court said: “ [I]t unquestionably appears from this proof that these repeated injuries to this nerve, no one of which resulted in disabling him, but the accumulation of which, resulted in substantial permanent disability to this arm,” and further observed, “While it is true the employee can point to no particular date or a particular blow or jerking, or pulling in running this machine on the heavy soled shoes, which produced the injury, yet it is not necessary that the accident occur at any particular or specific time. The series of jerking or pulling or holding on this to the employee’s hand produced the injury and loss which was unintended and an unexpected occurrence.” The employer urged that what had happened to the employee [491]*491comes in the category of an occupational disease rather than accident, but the court rejected such contentions, as we do here.

The similarities in the instant case and in Winkleman and Brown Shoe Company are obvious. There have been similar applications of the compensation statute to like factual situations —successions of bumps, scratches, jars, etc., in other cases: e.g., Barker v. Shell Petroleum Corp., 132 Kan. 776 (297 P 418); Public Sendee Co. v. Gillespie (Okla.) 321 P2d 414; W.

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125 S.E.2d 72, 105 Ga. App. 487, 1962 Ga. App. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipman-v-employers-mutual-liability-insurance-gactapp-1962.