Fireman's Fund Indemnity Co. v. Industrial Accident Commission

DOOLING, J.

Petitioner seeks to annul an award of workmen’s compensation to respondent Whitaker, Whitaker was employed from 1942 to 1945, in Richmond Shipyard No. 1 of the Permanente Metals Corporation. He was working with steel parts and averaged about three hours per working day grinding steel upon grindstones. About two months after his discharge Whitaker sought employment as a carpenter with the U. S. government and an examination disclosed that he was suffering from pneumoconiosis to an extent which incapacitated him for physical labor. The commission found that while working as a grinder in the shipyard Whitaker inhaled dust which aggravated a previous condition of his lungs, causing a temporary total disability. Petitioner claims that this finding rests on no substantial evidence.

Whitaker had worked as a miner doing dry drilling underground for about four years ending in 1921 and X-rays of his chest taken at the San Francisco Hospital in 1933 showed “spotty densities associated with long standing pneumoconiosis.” However, he was not disabled from working by this condition and in 1937 while in the San Francisco Hospital for treatment of cellulitis of the right leg and hernia the record shows: ‘ ‘ Clinical examination of the chest at this time showed nothing remarkable.”

Whitaker was examined by Dr. Farber who reported:

“The patient has approximately a five-year history extending from 1916 to 1921, during which time he was intermittently exposed to fine sandstone. There is an excellent possibility that this patient’s pulmonary difficulties began at that time. His three-year history of exposure to dust from grinding wheels of several types between 1942 to 1945, brings up the possibility that this patient’s lungs received additional insults during this time. He states that he wore no mask or respirator. If it is possible, it would be advisable to obtain an expert "opinion on the types of dust that this man was exposed to and the possible concentrations. If these concentrations were marked and this patient had adequate exposure to siliocosis-producing irritants, then it is reasonable to consider that this patient’s lungs received additional trauma during his work between 1942 and 1945.”

[246]

It was not possible to get expert opinion as to the types and concentrations of dust to which Whitaker was exposed since no record had been made and the plant was dismantled at the time of the hearings.