Document mbkEZ66qGkQXBVjj2q6eqdDY0

FILE NAME Industrial Hygiene Foundation IHF DATE 1937 DOC IHF061 DOCUMENT DESCRIPTION AHF Legal Bulletin AIR HYGIENE FOUNDATION OF AMERICA Inc. Legal Series Bulletin No. 1. Supplement No. 1 A Survey of the Statules and Court Decisions Respecting Occupational Disease from Air Pollution For the Confidential Information of members Not for reproduction wholly or in part PITTSBURGH PENNSYLVANIA MARCH 1 1937 Chapter I II III IV V VI VII CONTENTS Supplement No. 1 Scope and Purpose of Survey Resume of Workmen's Compensation Laws as They Affect Occupational Disease . Common Law Rights and Liabilities Alabama oo... Arizona Arkansas stress California Colorado Connecticut District of Columbia Florida Georgia Idalio . Illinois Indiana Iowa Louisiana . Maine .. Maryland Massachusetts .. Michigan Minnesota Mississippi Missouri ... Montana Nebraska Nevada i ccceeee New Hampshire New Jersey New Mexico New York North Carolina North Dakota ........ Ohio .... os Oklahonia Oregon Pennsylvania Rhode Island South Carolina 2.00... South Dakota Tennessee Texas Utah Vermont ..... Virginia Washington West Virginia . Wisconsin Wyoming Index of Cases Cited | FOREWORD In Legal Series Bulletin No. 1 Parts to vii inclusive Air Hygiene Foundation of America presented to its members the report of its Legal Committee in which were summarized the statutes and court decisions of all states in the United States with respect to industrial diseases and the rights and liabili ties growing out of air pollution hazards in industry The preparation of that report required a number of months work and it was completed in September 1936. At the request of the Foundation the Legal Committee has prepared this supplemental report which is designed to bring its previous report down to March 1 1937. This supplemental report as was the original report was prepared by Henry A. Middleton a member of the law firm of Williams Eversman & Morgan of Toledo Ohio This report will be known as Legal Series Bulletin No. 1 Supplement No. 1 and will be available to members for their confidential information and use 4400 Fifth Avenue Pittsburgh Pa March 1 1937 H. B. MELLER Managing Director CHAPTER I SCOPE AND PURPOSE OF SURVEY The basic survey of statutory and case law with respect to the rights and liabilities growing out of dust hazards and air pollution in industry was completed in September 1936 and was published by Air Hygiene Foundation of America as Legal Series Bulletin No. , Parts i to vii inclusive Since completion of that report many court decisions have been rendered and important legislation has been considered by several state legislatures The purpose of this report is to supplement the basic survey and bring it down to date It is manifest that the task of procuring information from all of the states with respect to pending legislation requires a very considerable amount of time and that it is difficult to correlate this information as of one particular day The information may however be con- sidered as substantially correct as of the date of this supplemental report which is March 1 1937 In compiling this report we have followed the same chapter numbers and headings as were used in the basic survey which was published as Legal Series Bulletin No. 1 Parts i to vii CHAPTER II RESUME OF WORKMEN'S COMPENSATION LAWS AS THEY AFFECT OCCUPATIONAL DISEASE The tabulation which appears in Chapter II of the basic survey was prepared approximately a year ago A sufficient number of changes in the laws of the various states have occurred in that time to make it desirable that this chapter be reprinted in its entirety with a considerable number of corrections As of present date the corresponding chapter in the basic survey should be disregarded and this chapter should be considered as substituted therefor in its entirety This tabulation is not submitted as a sufficiently exhaustive treatment of the subject and reference must be made to the chapters covering the individual states both in the basic survey and in this supplement for complete information Section 1 Arkansas States with No Compensation Acts Mississippi Section 2 States Having Compensation Acts Which Exclude Compensation for Occupational Disease Either Expressly Or By Construction of Court Alabama Expressly excludes disease unless the disease shall result proximately from the accident Arizona Colorado Delaware Does not include a disease unless result- ing from an injury by accident Allows compensation where the injury or death is proximately caused by accident arising out of and in the course of his employment This would exclude oc- cupational diseases except any such cases as are proximately caused by accident Shall not include a disease or infection except as it shall result from the injury when reasonably treated Injury as used in the Act means injury by acci- dent Florida Includes such diseases or infections as result from such injury by accident 2 Georgia Idaho Indiana Iowa Kansas Louisiana Maine Maryland Shall not include a disease in any form except as it results naturally or unavoidably from the accident Shall not include a disease except as it shall result from the injury Injury must be the result of an accident but the courts have very liberally construed accidental injury and have gone very far in holding disease to be the result of accidental injury and therefore compensable Shall not include a disease in any form except as it shall result from the injury Injury must be the result of accident Shall not include a discase unless it shall result from the injury No requirement that the injury must result from accident but there is obiter dictum to the effect that occupational diseases are not compensable under the Act Covers personal injury by accident only Only covers injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom Occupational diseases are excluded except as above Accident must be an unexpected unforeseen event happening suddenly and violently with or without fault and producing at the time objective symptoms of an injury Personal injuries by accident are compensable Diseases are excluded by court construction except such cases as are caused by accident Injury and personal injury mean only accidental injuries arising out of and in the course of employment and such disease or infection as may nat- urally or unavoidably result therefrom . The courts of Maryland have placed un- usual constructions upon accidental in- jury and the chapter of this report on Maryland law must be consulted Michigan Covers personal injuries arising out of and in the course of his employment Occupational diseases are excluded by court construction except where such is result of an accident Montana Injury reiers only to an injury resulting from some fortuitous event as disting- uished from the contraction of some dis- ease Occupational diseases are thereby excluded Nevada Compensation is provided for personal injuries by accident Disease is not mentioned and is therefore excluded New Hampshire Personal injury by accident is compensable Discase is not mentioned and is therefore excluded except possibly such cases as are caused by accident New Mexico Personal injury by accident is compensable Occupational diseases are not covered Oklahoma Injury and personal injury mean only accidental injuries arising out of and in the course of employment and such diseases or infection ^ s may naturally result therefrom Oregon Personal injuries by accident caused by violent or external means are compensable Diseases are not mentioned and are therefore excluded except such cases as may be caused by accident due to violent or external means Pennsylvania Injury means only violence to the physical structure of the body and such disease or infection as naturally results therefrom By construction occupational disease is excluded t t South Carolina Shall not include a disease in any form except where it results naturally or unavoidably from an accident South Dakota Tennessee Shall not include a disease in any form except as it shall result from the injury Shall not include a disease in any form except as it shall result from the injury Texas Injury in course of employment is com- pensable Injury shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom Courts have declared the injury must be accidental Utah Vermont Personal injury by accident is compensable and shall not include a disease except as it shall result from the injury Personal injury by accident is compensable and shall not include a dis- ease except as it shall result from the injury Virginia Shall not include a disease in any form except where it results naturally and un- avoidably from the accident Washington Personal injuries are compensable Injury means a sudden and tangible happening of a traumatic nature Dis- eases are not mentioned and are therefore excluded except such physical condition condition as results from injury of a traumatic nature Wyoming Personal injuries sustained in enumerated extra hazardous employments are compensable The terms injury and personal injury shall not include a disease except as it shall directly result from an injury incurred in the course of employment 5 Section 3 States Having Workmen's Compensation Acts Which Include Compensation for Occupational Disease Either Expressly Or by Construction of Court California Injury includes any injury or diseases arising out of the employment including injuries to artificial members Silicosis is compensable by court construction Connecticut Includes occupational diseases as defined The words occupational disease shall mean a discase peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of the employment as such Silicosis is compensable by court construction District of Columbia Injury includes such occupational dis- ease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury * *. No decision involving silicosis but it would undoubtedly be compensable under the Act Illinois Occupational disease is not compensable under the Workmen's Compensation Act Silicosis and some other dust diseases were not compensable under the old Occupational Disease Act which was effective until October , 1936. Under the new Occupational Disease Act effective October , 1936 all occupational diseases including silicosis are compensable Kentucky 44 L * personal injury by accident as herein defined shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident nor shall they include the re- sults of a preexisting disease but shall include injuries or death due to the in- halation in mines of noxious gases or smoke commonly known as bad air and also shall include the injuries or death due to the inhalation any of any kind of gas Massachusetts Minnesota Missouri *** *** *** and any employers and their employees engaged in the operation of glass manufacturing plants quarries sand mines or in the manufacture treating or handling of sand may with respect to the disease of silicosis caused by inhalation of silica dust in like manner voluntarily subject themselves thereto as to such disease Disability resulting from occupational diseases is compensable in Massachusetts by court interpretation This is because of a provision in the Act for making a claim for compensation alleging that an injury is due to an occupational dis- ease and also because there is no re- quirement that an injury result from an accident in order to be compensable The only requirement is that it be a personal injury arising out of and in the course of employment Disability resulting from any of the twenty occupational diseases enumerated in the Act is compensable Sili- cosis is not included in this list The terms injury and personal injury shall in no case except as hereinafter provided be construed to include occupational disease in any form nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment *** Nothing in this chapter contained shall be construed to deprive employees of their rights under the laws of this state pertaining to occupational diseases unless the employer shall file with the commission a written notice that he elects to bring himself with respect to occupa- tional disease within the provision of this act ** ** ** This makes it possible for the employer by election to bring occupational discase under the Act 7 Nebraska New Jersey New York North Carolina North Dakota Ohio Rhode Island West Virginia Occupational diseases peculiar to the smelting or metal refining industries are compensable The statute specifically excludes all others The Act covers only eleven diseases which are specifically enumerated Silicosis is not so enumerated Compensation is payable for 27 enumerated occupational diseases if acquired in the occupation set opposite the particular disease in the schedule By amendment effective September 1 1935 group 28 was added extending coverage to any and all occupational diseases By further amendment effective June 6 1936. sili- cosis and other dust diseases were removed from group 28 and made compensable under a separate chapter The schedule enumerates 25 compensable occupational diseases including asbestosis and silicosis The term injury includes in addition to any injury by accident any disease proximately caused by the employment The Act covers 21 enumerated diseases The list does not include silicosis asbestosis or other dust diseases Prior to September 15 1936 the Act provided compensation for nothing but per- sonal injury sustained by accident As of that date an amendment became ef- fective making 31 groups of diseases compensable asbestosis Silicosis and other dust diseases are not included Disability or death caused by silicosis is compensable at the election of the employer subject to certain limitations No other occupational diseases are covered by the Act Wisconsin Injury is mental or physical harm to an employee caused by accident or disease Silicosis and other dust diseases are compensable by court interpretation CHAPTER XXII MARYLAND I. Workmen's Compensation Act No change II Other Statutes No change III Common Law Liability No change IV Miscellaneous Matters of Interest The Legislature convened in regular session on January 6th of this year and at the time of writing is still in session We are informed by the State Industrial Accident Commission that no bills are pending which would expressly make dust diseases compensable under the Workmen's Compensation Act or which prescribe precautions to be taken by employers with respect to dust hazards in their employments Employers are required by the State Industrial Accident Commission to observe certain safety codes and regulations Such codes and regulations contain specific requirements in relation to smoke gas fumes and dusts generated in employments Copies thereof may be obtained by communication addressed to the Commission at Baltimore Maryland A survey was recently conducted by the State Department of Health in conjunction with the United States Public Health Service the office of the Commissioner of Labor and Statistics of Maryland and the Baltimore City Health Department at the request of the Maryland Commission for the Study of Occupational Diseases The survey was made for the purpose of assisting this Commission in preparing a report with recommendations for the control of occupational diseases for the Legislature which is now in session Special consideration was given to potential occupational disease hazards involved in the various types of industry carried on in this state The records have been tabulated and the report on the findings is now being prepared The report has not yet been released but we are informed by the State Department of Health that it will probably be available shortly through the United States Public Health Service The Commission for the Study of Occupational Diseases has informed us that its report will be submitted to the Governor during the week of March 9th and will recommend the enactment of legislation for the prevention and compensation for occupational diseases in Maryland CHAPTER XXIII MASSACHUSETTS I. Workmen's Compensation Act . Statutes There is no change to date in the statutes but attention is called to a bill now pending and which is discussed in Sec IV of this chapter 4. Court Construction In Wnukowski's Case 5 N. E. 2d 3 S. Ct Nov. 1935 following a long line of Massachusetts cases it was held that disability or death resulting from the inhalation of dust in the course of employment is compensable under the Workmen's Compensation Act The deceased herein constantly inhaled lime rust and soap dust over fifteen years employment in defendant's plant II Other Statutes No change III Common Law Liability No change IV Miscellaneous Matters of Interest 1. Pending Legislations The Legislature is now in regular session having convened January 6 1937. We are informed by the Division of Occupational Hygiene of the Department of Labor and Industries that only one bill is now pending in the Legislature which would specifically affect either the control or compensability of silica dust hazards That bill is House Bill No. 1257 and provides that the Department of Industrial Accidents may upon application therefor and after investigation issue to any employer in the foundry business a certificate of compliance with its rules and regulations relative to the installation and operation of suitable devices for the prevention of silicosis and may at any time for cause suspend or revoke such certificate Silicosis is defined for the purpose of the section as that form of pneumoconiosis caused by the inhalation of siliceous dust other than that of asbestos The bill also makes provision for the handling of rejected risks by insurance companies subject to the provisions of the act A hearing on the bill was set for February 18 1937 2. Rules and Regulations No rules or regulations relating to the granite dust hazard have actually been adopted as yet We are informed however 41