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Mead v. American Smelting & Refining Co.

Supreme Court of Arizona

July 17, 1961

Major MEAD, Petitioner,
v.
AMERICAN SMELTING & REFINING COMPANY, Respondent Employer, and the Industrial Commission of Arizona, Respondent Insurance Carrier.

In Banc.

Udall & Udall, Tucson, for petitioner.

Guynn, Twitty & Sievwright, Phoenix, for respondent employer.

James D. Lester, Phoenix, Donald J. Morgan, Frances M. Long, Edward E. Davis and C. E. Singer, Jr., Phoenix, of counsel, for respondent Industrial Commission of Arizona.

[90 Ariz. 33] LOCKWOOD, Justice.

Petitioner seeks by certiorari to overturn respondent Industrial Commission's Award for Non-Compensable Claim. In April, 1958, petitioner Mead, suffering from asthma and a pulmonary disease known as emphysema, filed his claim for compensation, which was denied by respondent Commission in November, 1958. Timely protest and petition for rehearing followed, several lengthy hearings were held, and in September, 1960, the Commission presented its Amended Findings and Award for Non-Compensable Claim. The Commission found, inter alia, that:

'* * * 6. The ore dust and odor of reagents within the mill building where claimant performed his duties did not exist in hazardous quantities, nor was claimant exposed to hazardous conditions of odor or dust in his working premises within the mill building.

* * *

* * *

'9. Claimant in June of 1957 transferred to the filter plant. In performance of his duties therein he constantly wore a respirator and was not exposed to injurious amounts of dust or odors.

* * *

* * *

Page 931

'11. Claimant returned to work for the defendant employer in August of 1957 as a laborer and with the exception of a brief exposure to paint odor he was not exposed to ore dust nor reagent odors; claimant's respiratory condition worsened progressively and he terminated his employment in January of 1958.

'12. Claimant's employment with the defendant employer and the conditions thereof did not cause, precipitate or aggravate his pre-existing bronchial asthma, a respiratory disease, nor did his employment or the conditions thereof cause, precipitate or aggravate the claimant's emphysema, a respiratory disease, or the related respiratory conditions of which claimant complains.'

Immediately thereafter, counsel for petitioner, by letter of September 27, 1960, protested the award and requested the Commission to make a specific finding whether precipitating or aggravating a pre-existing asthmatic condition may constitute an 'industrial accident' within the meaning of our workmen's compensation statutes, A.R.S. § 23-901 et seq. Petitioner's letter was treated as a Petition for Rehearing and was denied by Order of respondent Commission. This appeal followed, in which it is contended that (1) the Award is arbitrary and not supported by the evidence of record, and (2) the question of whether aggravation of a pre-existing asthmatic condition constitutes an 'industrial accident' was improperly ignored by respondent Commission in its denial of the Petition for Rehearing.

[90 Ariz. 34] In making a determination as to the propriety of the Award, it is necessary to review here petitioner's employment and medical history. Petitioner was employed by respondent American Smelting & Refining Company, hereinafter referred to as 'the company', on or about January 12, 1955, as an unskilled laborer. He was examined before being accepted for employment by Dr. Stuart Over, the company doctor, who stated in the Medical Examination Report that petitioner's lungs were clear and resonant, the 'X-ray chest shows no evidence of active pulmonary disease', and that Mead was 'OK for employment.' Dr. Thomas Keely's X-ray diagnosis for the company was 'essentially negative chest.' Petitioner first went to work as a 'process laborer' doing cleaning work in the middlings thickener, where the ore is processed in a chemical solution. After about two months he moved into the ball mills section of the mill, where he stayed for about 14 months, working as a 'helper' to the ball mills operator for most of the time. His duties as 'helper' included tending the so-called 'ball mills', where the ore is ground and mixed with chemical reagents. During this same period, he also did clean-up work where the ore drops from the storage bins onto the conveyor belts, sweeping up the dust in the area around the belt, cleaning parts of the machinery with diesel oil and other chemical substances, cutting a dry sample at the ore drop box, reaching his hand into the box for the sample every hour, and cutting wet bucket samples of ore mixed with the reagents, where he said the fumes had a 'loud smell'.

Petitioner apparently was in good health throughout most of 1955, but in December of that year and January of 1956, he began to cough heavily and went to ...


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