Hartford Accident & Indemnity Co. v. Industrial Accident Commission

SCOTT, J., pro tem. Certiorari to review decision of the Industrial Accident Commission awarding compensation to respondent Houlihan. The applicant was employed as shipping clerk in a packing plant operated in turn by National Packing Company, Leonard Chudacoff, as receiver, and Tovrea Packing Company, who were insured at first by Pacific Employers Insurance Company and later by Hartford Accident & Indemnity Company. Industrial Accident Commission on November 20, 1933, made its findings, and awarded applicant compensation for temporary total disability due to tuberculosis, Avhieh compensation was to continue indefinitely. The compensation and medical expense Avere apportioned between the insurance carriers, 21/23 to Pacific company and 2/23 to Hartford company, on the basis of the time they had carried the insurance for the em-. ployers.

The evidence is clearly insufficient to justify or support an award of compensation to such employee under the Workmen’s Compensation Act. The testimony showed that employee Houlihan began working for the company in October of 1929 and continued until July, 1933, his title being that of shipping clerk, and included work in the office, cooler, smoke room and outside, which exposed him to extremes of heat and cold, smoke, ammonia gas and inclement weather. When he started such work he was healthy. Two years afterward he was examined for insurance and there [484]is no evidence that tuberculosis was discovered. After some further time he started to lose weight, appetite and endurance, and later had “pleurisy trouble” and “colds”. He first knew he had tuberculosis on June 20, 1933, and was obliged to stop work early in July. There is no question that the employee was suffering from pulmonary tuberculosis which rendered him temporarily totally disabled. The evidence does not show that it was due to his employment.

The report of the assistant medical director for the commission was as follows: “According to the record, this applicant was subjected to more than the usual hazard experienced by one in his type of employment. It is possible that continual exposures described would have predisposed to the lighting up of an inactive pulmonary tuberculosis. Naturally, such an opinion is merely surmise and conjecture. However, one can state positively that the duties of his employment as described would not be beneficial to him if he were susceptible to a tuberculosis lesion.”

Petitioners’ physician examined Houlihan and reported in part as follows, as to the cause of the tuberculosis: Dr. Campbell: “The question as to the cause in this particular case is blamed on the hazard of his occupation where he spends an average of 8 or 9 hours daily but the balance of the time is free to do whatever he cares to. Why penalize the place where he was employed 8 or 9 hours a day and attach no importance to his home life, environment and habits during the balance of the day? A general answer to the question is that any condition that lowers the tone of the general system renders the tissues susceptible to the changes produced by the tubercle bacillus. The latter is of course the direct cause, a susceptibility to its influence may be acquired by heredity, syphilis, alcoholism, occupations such as the inhalation of foul air and irritating particles, residence in damp or over crowded apartments, catarrhal inflammation of the respiratory tract or debility from any infectious disease, etc.” Dr. Smith: “That this man is tuberculous is proved and he is now undergoing the proper treatment for his condition. That this condition is related to his employment in industry is extremely questionable, in my opinion. Tuberculosis is an infectious disease. This claimant does not set forth in any way any claim or any evidence to substantiate any claim that he was infected with