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FILE NAME Industrial Hygiene Foundation IHF DATE 1936 DOC IHF059 DOCUMENT DESCRIPTION Air Hygiene Foundation of America - AHF Legal Bulletin t AIR HYGIENE FOUNDATION OF AMERICA Inc. Legul Series Bulletin No. 1 Part iv A Survey of the Statutes and Court Decisions Respecting Occupational Disease from Air Pollution For the Confidential Information of members production wholly or a part Not for re- PITTSBURGH PENNSYLVANIA JULY 8. 1936 CONTENTS Part iv Chanter Kenmeky XX Louisiana XXI Maine XXH Maryland XXII Massachusetts XXIV Michigan XXI Minnesota XXVI Mississippi XXVII Missouri XXV Montana FOREWORD This part tivi of Bulletin No. , Legal Series Air Hygiene Foundation of America contains an analysis of the statures and court decisions affecting occupational disease n^ ten States Part was a resume of workmen's compensation lows as they affect occupational disease and common laws part included detailed reports on Alabama and California part iii covered Colorado Colorado Connecticut ware District of Columbia Florida Georgia kako Dinais Indiana Iowa and Kansas Section v will be published soon I. MELLER Managing Directe Thackeray Ave. and O'Hara St. Pittsburgh Pa July 8. 13 MINF1639MINF16139 MINF1639 LEGAL SURVEY PART iv With respect to Occupational Disease Resulting from Air Pollution Comprising a Study of the Statutes and Court Decisions of all States of the United States Prepared for the Legal Committee of AIR HYGIENE FOUNDATION OF AMERICA INC by WILLIAMS EVERSMAN & MORGAN ATTORNEYS TOLEDO OHIO E CHAPTER XIX KENTUCKY I. Workmen's Compensation Act 1. Statutes Carroll's Kentucky Statutes 1930 Secs 4880- 4087 Administration The Act is administered by the Workmen's Compensation Board composed of three members appointed by the Governor for terms of four years each Communications may be addressed to the Board at Frankfort Ken- tucky 3. Scope of the Act Sec 4880 provides that compensation will be granted for ** ** personal injuries sustained by the employe arising out of and in the course of his em- resulting ployment or for death from such AC- cidemal injury provided however that personal in- jury accident as herein defined shall not include by except wherewhere the disease is the natural and result direct of a traumatic injury by accident nor shall they include the results of a existing dis- case but shall include injuries or death due to 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 of any kind of gas Any employers and employes who are by provisions of this section excepted from the provisions of this act including employers having less than three employes may subject themselves thereto by joint voluntary application to the board in writing for such period as may be stated in the application which shall be irrevocable during such period and effective thereafter until a written re- vocation be filed with the board or the employment be terminated and any employers and their em- ployes engaged in the operation of glass manu- facturing plants quarries sand mines or in the man- ufacture treating or handling of sand may with respect to the disease of silicosis caused by the inhalation of silica dust in like manner voluntarily subject themselves thereto as to such disease Bold face type and brackets ours The bracketed part of this section dealing with had air and gas was added in 1924 the bracketed part dealing with sili cosis was added and became effective June 14 1934 In the absence of an election by the employer with respect to silicosis where a disease results from the inhalation of dust 139 polluted air in the course of employment and not from inhaling bad air in a mine or any kind of gas compensation is recoverable only when such disease results naturally and directly from a traumatic injury by accident The wilful misconduct of an employee will bar his recovery under the Act With regard to silicosis this includes 1 failure or omission of an employee to observe the rules and regulations adopted by the employer and approved by the Workmen's Compensation Board 2 failure or omission of an employee truthfully to state upon the employer's inquiry to the best of his knowledge the place nature and duration of his previous employment 3 failure or omission of an employee upon the employer's inquiry truthfully to furnish to the best of his knowledge full information about the previous status of his health habits and medical attention that he or his blood relatives may have heretofore received and 4 failure or refusal to submit to medical examination to determine his physical physical condition with reference to silicosis whenever such examina- tion is ordered by the Board or to evade or obstruct such examination Sec 4882 Where the employee's injury or death results from the deliberate intent of the employer to produce such injury or death the compensation may be received in a lump sum to be used if desired to bring suit against the employer for any amount that he may desire Where death results under such circumstances the dependents may elect to claim under the Act or sue at law Sec 4882 Notice of an accident must be given an employer as soon as practicable after the occurrence and a claim made within one year after the accident or in case of death within one year atter the death In cases involving silicosis silicosis claims must be filed within one year after the last exposure to silica dust Sec 4914 Where silicosis is involved it is not clear by this section whether when death occurs such period is extended to permit a filing of the claim within one year after the death or whether even then the claim must still be filed within one year after the last exposure The notice required will not be invalid because of any inaccuracy unless the employer was misled by such to his injury A want of notice or a delay in giving the same will not bar claim if the employer or his representative had knowledge of the injury or if such failure or delay was occasioned by mistake or other reasonable cause Sec 4917 Under the Act the employer in the case of injury or of death 140 within two years of the injury must pay in addition to any other compensation a maximum of 100 or in the Board's discretion a maximum of 200 for medical surgical and hospital treatment to cure and relieve the employce from the effects of such injury Sec 4883 If these are furnished in such a manner that there is reasonable grounds to believe that the life health or recovery of the employee is being endangered thereby the Board may order a change to be made under reasonable regulations at the expense of the employer Sec 4885 Where death results within two years of the accident the employer shall pay in addition to the medical expenses a sum not to exceed 75 for burial expenses plus a death benefit of not more than 4,000 Secs 4893-4896 In cases of total disability the maximum is fixed at 6,000 by a schedule certain injuries are deemed total and permanent Sec 4897 In cases of partial disability both temporary and permanent the maximuna amount payable is 4,000 Secs 4898 and 4899 Where an accident is caused by the employer's intentional failure to comply with any statute or lawful regulation.com- regulation.communicated to the employer relative to safety appliances or methods the compensation will be increased 15 where such is caused by the employee's intentional failure to use any safety appliance furnished by the employer or to obey any lawful and reasonable rule order or regulation of the Board or the employer for the safety of employees or the public the compensation will be decreased % Sec 4910 Where a minor is employed in wilful and known violation of the child labor laws there is an election to claim compensation or to sue at law for damages If there is a misrepresentation of age and death occurs the only right which the representative or parent has is a claim for compensation under the Act Sec 4911 Where a claim for silicosis is made the Board will upon ap- plication by the employer or employee appoint one two or three disinterested and qualified physicians to examine the employee Their findings shall be certified to the Roard and shall include 1 at what stage if any the employee is suffering from silicosis 2 whether the disability temporary partial or total and 3 the extent if any of the impairment of capacity to work Sec 4941 The filing of a false or fraudulent claim constitutes a misdemeanor punishable by a fine of from 50 to 500 or imprisonment from 10 to 90 days Sec 4945 Employers electing to accept the Act are required to insure 141 their liability for compensation in some authorized corporation association or organization or furnish the Board with satisfactory proof of their financial ability to make direct payments in which case they must also deposit acceptable security indemnity or bond to meet the compensation liabilities as they occur Until such have been complied with the employer is liable from the date of the acceptance of the Act either at law or under the Act Sec 4946 Employers may subject to defined limitations form mutual insurance associations Sec 4948 and also enter into or continue any agreement with employees to provide a system of in- surance Sec 4949 Employers who carry their own risk are assessed against their payroll a maintenance fund tax computed by taking two per cent of the basic premiums chargeable against the same or a similar industry taken from manual insurance rates for compensation in force in the state Sec 4968-81 All insurance carriers insuring employers against liability under the Act are correspondingly taxed Sec 4968 Every employer who comes within the terms of the Act but who does not elect to operate thereunder loses the common law defenses of assumed risk contributory negligence and negligence of fellow servant in a suit against him by an employee to recover for personal injury or death by accident Sec 4960 The defenses are also abrogated when both the employer and the employee fail to come within the Act If however the employee elects not to operate under the Act and the employer does elect then in such a suit the three defenses would be available to the employer Sec 4961 As regards the exclusiveness of the Act by Sec 4882 it is provided that where an employer has elected to furnish and accept compensation under the Act the employer shall be released from all other liability whatsoever *** *** " However in Jellico Coal Co. v Adkins 197 Ky 684 247 S. W. 972 1923 the Supreme Court decided that this clause does not bar a common law action for disability caused by negligence of the employer when the disability is not included within those for which compensation is provided in the Act 4. Court Construction As a result of the decisions of the Kentucky courts where there has been no election by employer and employee in regard to silicosis and where the disability is not caused by inhalation of bad air in a mine or by inhalation of gas diseases resulting from the breathing of polluted air over a long period of time in the course of em- 142 ployment are not compensable under the Workmen's Compensation Act This is because they cannot be deemed 2 traumatic injury by accident as is required under the Act The first case involving an occupational disease was that of Jellico Coal Co. v Adkins supra brought before Sec 4880 was amended to recover at law for damages resulting from working in an improperly ventilated mine On a certain day the plaintiff and a fellow employee had fired certain shots in a room in which they were working and had waited outside for thirty minutes for the smoke to clear before resuming work In a properly ventilated mine ten minutes is sufficient time but for several days this room had not cleared in less than half a day That exposure had caused severe headaches to the plaintiff but he had not realized there was any danger Later that day during the process of work he fainted and was taken home Disablement fesulted from a discase known as endocarditis an inflammation of the lining of the heart Since both parties were under the Workmen's Compensation Act the plaintiff first filed his claim thereunder but the Board ruled that it was without jurisdiction since the disability did not result from a traumatic injury by accident The plaintiff appealed that decision Meanwhile this action was filed and in the appeal of the Board's decision the action at law was pleaded in bar The court judged the plea good but further affirmed the action of the Board in finding that it had no jurisdiction in the matter There was a judgment for the plaintiff in the lower court and that decision was affirmed on appeal The upper court considered the injury to be an occupational disease not compensable under the Act because it was not a traumatic injury The court in its opinion said It will he observed that all of these definitions of trauma and traumatic imply the presence of physi- cal force and this is the generally accepted meaning of the word Evidently the act implies that some external force must occur in order to constitute traumatic injury by accident * * #. Since the court makes no reference to a definition of ac- cident it seems that the court's decision hinges on the single word traumatic and that an injury resulting from the breathing of noxious gases would not come within their definition of that word Subsequent decisions have however greatly broadened the meaning of this term The legislature in 1924 in the session immediately following this decision amended Sec 4880 of the Act and made injuries death due to inhalation in mines 143 of noxious gases or smoke commonly known as bad air or injuries or death due to the inhalation of any kind of gas compensable under the Act Crutcher Dental Depot v Miller 66 S. W. 2d 466 1933 adds this bit of historic information Elkhorn Coat Co. v Kerr 203 Ky 804 263 S. W. 342 1924 and Midland Coal Co. v Ruckers 211 Ky 582 277 S. W. 838 1925 likewise involve actions at law for injuries sustained by breathing impure air and noxious gases in mines The actions were brought before the 1924 amendment to Sec 4880 became effective and the verdicts were for the plaintiffs on the authority of Jellico Coal Co. v Adkins supra Although not involving a dust disease the case of The Great A. & P. Tea Co. v Sexton 242 Ky 266 46 S. W. 2d 87 1932 is important because of the court's definitions of the words accident and trauma as used in the Act In that case the plaintiff contracted a disease commonly known as rabbit fever while cleaning for shipment rabbits which were infected with that disease The germ entered plaintiff's system through a scratch on his hand The action was at law the plaintifi alleging that he did not know that the rabbits were diseased and that the defendant knew or should have known of their diseased condition The court held that the disease was the result of a traumatic injury by accident and theresore since both parties had accepted the Workmen's Compensation Act it was compensable only under the Act The Court said If an injury is suffered in the course of employment unexpectedly and without design and can be traced to a definite time place and cause it is an accident within the popular sense of that term and as it is used in the compensation law * * * **** ** In the definition of trauma as given by Webster and quoted in the foregoing opinions we find the : following A wound or injury directly produced by causes external to the body It will be noted that this does not include with- in its scope only physical force in the sense of a blow a current of electricity or like terms implying power vigor violence or energy in the commonly accepted meaning of its terms but may be as consistently construed to include any independent iniluence or cause external to the body coming into direct contact with and causing injury to the physical structure thereof It will be observed that this definition of trauma greatly broadens the meaning of that term as construed by the court in Jellico v Adkins supra 144 Following this decision in Schable v Robineau Mfg Co. 245 Ky 409 53 S. W. 2d 750 1932 compensation was granted to dependents where the death of an employee was caused by the inhalation of sawdust in the course of his employment Here however a water pipe burst and in attempt ing to make repairs it was necessary to disconnect certain a pipes which blew sawdust into the furnace of boiler The inhalation of the sawdust which extended over a period of less than a day satisfied the requirements that the injury be traumatic and by accident It would be difficult to find in regard to an injury's being traumatic any distinction between an injury caused by the inhalation of dust polluted air and an injury caused by the inhalation of air polluted with sawdust It has also been held that where there is an acceleration of a preexisting latent disease the resulting disability is compensable under the Act Robinson Co. v Workmen's Compensation Board 258 S. W. 318 1924 that death resulting from a sunstroke is not compensable Smith v Sanitary Mfg Co. 277 S. W. 806 1925 and that disability caused by typhoid fever resulting from drinking impure water furnished by the em ployer is not compensable thereunder Mills v Columbia Gas Constr Co. 55 S. W. 2d 394 1932 Where there has been no election to come under the Act as to silicosis and where that part of Sec 4880 dealing with the in- halation of bad air in a mine or of gas is inapplicable an injury caused by the inhalation of dust polluted air will be compen- sable under the Act only where it can be deemed to be a traumatic injury by accident That such an injury may be consid ered as resulting from a trauma seems settled by the decision in Schable v Robineau Mfg Co. supra II Other Statutes 1. State Board of Health Sec 2062f All persons firms or corporations operating any factory or workshop where emery wheels or emery belts of any description are used either solid emery leather leather covered felt canvas linen paper cotton or wheels or belts rolled or coated with emery or corundum or any other abrasive material or cotton wheels used as buffs shall for the protection of the health of the employees provide the same with suction or exhaust sys- tems or similar apparatus which shall be placed over beside or under such wheels or belt in such a manner as to protect the person or persons using the same from the particles of dust produced and caused thereby and to carry away the dust arising 145 from or thrown off by such wheels or belts while in operation directly to the outside of the building or to some receptacle placed so as to receive and confine such dust provided that grinding machines upon which water is used at the point of grinding contact and solid emery wheels that are used occasionally for tool grinding emery wheels used only in connection with fitting operations necessitating only momentary contact with wheels also flexible shaft grinding and swing frame grinding shall be exempt from the provisions of this act Sec 2062f It shall be the duty of every person firm or corporation operating any such factory or workshop to provide or construct such appliances apparatus machinery or other things necessary to carry out the purpose of this act as set forth in the as preceding section follows Each and every such wheel shall be fitted with a sheet or cast iron hood or hopper of such form and so applied to such wheel or wheels that the dust or refuse therefrom will fall from such wheels or will be thrown into such hood or hopper by centrifugal force and he carried off by the current of air into a suction pipe attached to said hood or hopper Sec 2062f Each and every such wheel six in- ches or less in diameter shall be provided with a three suction pipe wheels six to twenty inches in diameter with inch suction pipe wheels from twenty inches to thirty inches in diameter with inch suction pipe and all wheels larger in diameter than those stated above shall be provided each with a suction pipe not less six than inches in diameter The suction pipe from each wheel so specified must be full size to the main trunk suction pipe and the main suction pipe to its which smaller pipes are attached shall in diameter and capacity be equal to the combined area of such smaller pipes attached by the same and the discharge pipe from the exhaust fan connected with such suction pipe or pipes shall be as large or larger than the suction pipe Sec 2062f It shall be the duty of every persou firm or corporation operating any such factory or workshop to provide the necessary fans or blowers to be connected with such pipe or pipes as above set forth which shall be run at a rate of speed as will produce a velocity of air in such suction or an equivalent suction or pressure of air equal to raising a column of water not less than five inches in a shape tube All branch pipes must enter the main trunk pipe at an angle of forty degrees or less the main suction or trunk pipe shall he either upon the floor or beneath the floor on which the machines are placed to which such wheels are attached All bends turns or elbows in such pipes must be made with easy smooth surfaces having a 146 radius in the throat of not less than two diameters of the pipe on which they are connected Sec 2062f places upon the Department of Labor the duty of supervising and enforcing these provisions Sec 2062f provides penalties for a failure to to comply with the provisions 2 Rules and Regulations Adopted ment of Health Sec Under authority of Statutes the Board of Health adopted by the State Depart2049 of the Kentucky rule 190 which reads Every person firm or corporation operating a factory mill mine quarry store office workshop or work place of any description including building and construction work employing one or more per- sons to labor shall make the following provisions for the protection of the health of their employees and the community in which the establishment or work is located * * * 3. The ventilation heating and lighting of the places of employment shall be adequate and shall be maintained with strict re- gard for the health comfort and safety i employ- ees * The State Board of Health has also made recommendations for compliance with the above rule After enumerating enumerating specific requirements as to the amount of air to be supplied the recom- mendation : continues Every such factory mill store office workshop or workplace should be kept free from gas or effluvia arising from sewer drain privy or other nuisance on the premises All poisonous or noxious fumes or gases arising from any process and all dust of a character injurious to health of the per- sons employed which is created in the course of a manufacturing process within such factory mill or workshop should be removed as far as practicable by either ventilating or exhaust systems ***** ***** All decomposed matter and all refuse of any workplace which may become a nuisance or menace to health should be removed and disposed disposed of in such a manner as not to cause a nuisance and all clean- ing shall be done as far as possible outside of work- ing hours but if done during working hours should be done in such a manner as to avoid the unneces- sary raising of dust or noxious odors These rules are contained in a pamphlet entitled Kentucky Labor Laws distributed by the Department of Labor of Kentucky 147 3. Mines and Mining Coal Sec 2739-19 treats at length the method of ventilation the action to be taken where the ventilation is interrupted maps and plans to be submitted for approval before any additional openings are made the amount of air to be supplied the number of men permitted on each air current or split and other matters pertaining to ventilation The section in its entirety should be carefully scrutinized by mine owners Sec 2739-20 In all mines accumulations of fine dry coal dust shall as far as practicable be removed from the mine and all dry and dusty operating sections kept thoroughly watered or rock dusted or dust allayed by such other methods as may be approved by the Chief of the Department of Mines and Min- erals 4. Children Sec 331a prohibits the employment of children under fourteen years of age in any factory mill workshop mercantile establishment etc. Sec 331a prohibits the employment of children between fourteen and sixteen years of age in any factory mill work- shop mercantile establishment etc. unless the employer procures an employment certificate Sec 331a prohibits children under sixteen years of age from operating or assisting in operating certain machines among which are saws wood shapers planers sandpaper or wood polishing machines enery or polishing wheels leather burnishing machines rolling mill machinery etc from working in any processes in which dangerous or poisonous acids are used from working in the manufacture or packing of paints colors or white or red lead from working in occupations causing dust in injurious quantities from working in the manufacture of dangerous or poisonous dyes and numerous other occupations dangcrous to the life or limb or injurious to the health or morals of such children Sec 331a The walls and ceiling of each room in every manufacturing establishment where minors are employed shall be lime washed or painted when it + in the opinion of the labor inspector shall be conducive to the health or cleanliness of the persons working therein Sec 331a enumerates the penalties for permitting children to work in violation of the Act 148 5. Sanitation of Food Establishments 2060b provides that every establishment used for the preparation manufacture packing storage sale or distribution of any food intended for sale must be properly and adequately lighted drained plumbed and ventilated and conducted with strict regard to the health of the employees and to the purity and wholesomeness of the food 2060b enumerates the penalty for a violation of the sections dealing with the sanitation of food establishments III Common Law Liability As previously observed in discussing the scope of the Workmen's Compensation Act the case of Jellico Coal Co. v Adkins supra definitely decided that the Workmen's Compensation Act was exclusive only as to such injuries as were compensable under the Act whereas other injuries not covered by the Act for which there was a recovery at common law are unaffected by the Act In that case a verdict for the plaintiff was affirmed where the injury for which damages were sought was the disability resulting from a disease known as endocarditis an inflammation of the heart caused by the breathing of foul air in a mine during the course of employment The negligence upon which plaintiff's action was predicated was the breach of a statute which provided that no working place should be driven more than sixty feet beyond a breakdown except with the consent of an inspector There was no claim that such consent had been given The court affirmed the verdict of the jury in plaintiff's favor declaring that since the defendant had failed to conform to a statutory duty it could not rely on the defense of assumed risk and furthermore the plaintiff was not guilty of contributory negligence as a matter of law in continuing to work after discovering the danger of which he complained Royal Collieries Co. v Wells 244 Ky 303 50 S. W. 2d 948 1932 also involves an action at law for injuries alleged to have resulted from inhaling bad air in defendant's mine The cause of action also arose before the 1924 amendment to Sec 4880 of the Workmen's Compensation Act making injuries so sustained compensable thereunder In affirming a judgment for the plaintiff the court made an interesting statement regarding contributory negligence **** **** **** A servant may know a thing is defective and yet by reason of his inexperience be incapable of comprehending the danger from it By continuing at work the servant cannot be said to be negligent 149 unless he not only knows the defects but knows the danger or by the exercise of ordinary care in the exercise of his employment should know it citing cases There is a peculiar reason for applying this rule in the case of a subtle poison pervading the air whose effect is only known to the medical profession or those who have studied the subject Kitchen may have been willing to undergo the discomforts of a headache or the temporary sickness that resulted from the mine but it may be that he would not have been willing to take the risk of the noxious gases if he had known their effect on the constitution and the danger of destroying his entire vitality if he continued to work in the mine The rule to he applied to an ignorant servant should be more liberal in the case of a subtle agency like bad air than in the case of those physical things like the want of props or the cracking of a roof which he could plainly see and any man of prudence would understand the danger A recent case directly in point is Christopher's Admr v Blanton Stone Co. 258 Ky 587 80 S. W. 2d 590 1935 The action was at law for the death of an employee caused by the inhalation of dust and small particles of limestone rock while employed for approximately a year in defendant's rock quarry The petition alleged that the plaintiff did not know of the danger and that the defendant knew or should have known of such danger The court held for the defendant on the ground that the petition was insufficient because the plaintiff had alleged a failure to provide a mask whereas there was no statute imposing such a duty upon an employer and the petition did not allege negligence of the employee The court also declared that the fact that the work was hazardons did not make the employer liable for all injuries to his employees but only for such injuries as were caused by his negligence in breaching some duty owed the employees Under these decisions it is apparent that except as modified by the Workmen's Compensation Act there is a common law action for disability resulting from an occupational disease caused by the inhalation of dust in the course of employment if based upon the negligence of the employer Personal injury by accident specifically includes injuries or death due to inhalation in mines of noxious gases or smoke commonly known as bad air and also injuries or death due to the inhalation of any kind of gas Sec 4880 therefore it seems clear that under Sec 4960 an employee is denied the com- mon law defenses in an action brought for such disability if the employer has not elected to operate under the Act 150 The effect upon the employer's right to the common law defenses when sued on account of silicosis in case of his failure to elect to operate under the Act as to silicosis is not so clear Sec 4880 does not define silicosis as a personal injury by accident Sec 4966 denies the common law defenses to the employer in case of failure to elect to operate under the Act in any suit at law * * to recover damages for personal injury or death by accident It therefore appears to be an open question whether the employer not operating under the Act . would be harred the use of the common law defenses if sued on account of silcosi silicosis IV Miscellaneous Matters of Interest ] Statute of Limitations By Sec 2516 of the Kentucky statutes an action for personal injuries or death must be commenced within one year after the cause of action has accrued 2. Pending Legislation There are at present no bills pend- ing in ing in the legislature relating to precautionary measures to be taken with respect to dust diseases nor has any official survey of dust dust hazards or dust diseases diseases been made 151 . CHAPTER XXII MARYLAND I. Workmen's Compensation Act 1. Statutes Bagby Annotated Code of Maryland 1924 Article 101 Sec 1 through Sec 65 2. Administration The Act is administered by the State Industrial Accident Commission composed of five members appointed by the Governor for terms of five years each Com- munications may he addressed to the Commission at Baltimore Maryland 3. Scope of the Act A. Definitions Sec 65 6 provides Injury and personal injury as used in the Act mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally result therefrom Attention is called to the phrasing accidental injuries as contradistinguished from injuries by accident which occurs in numerous Workmen's Compensation Acts The case of Victory Sparkler & Specialty Co. v Francks infra stresses the importance of this difference in phrasing The wording of this definition would indicate that there can be no recovery by an employee under the Act for a disability due to an occupational disease arising out of and in the course of his employment The courts have however so construed accidental injuries as to include disease resulting from a condition negligently allowed to exist hence disease caused by negligence seems to be compensable This construction was first announced in 1925 in the case of Victory Sparkler & Specialty Co. v Francks infra A careful examination of that and subsequent decisions is necessary for an understanding of the Maryland law B. Compulsory Character and Exclusiveness of Liability As a means of specifying specifying the occupations and employments covered by this Act it designates in paragraph 32 certain em- ployments as being extra hazardous There are forty subparagraphs and they enumerate practically every trade business or occupation carried on by private employers and they include specifically practically all industries where dust or other forms of air pollution are to be encountered Certain 167 | i mon law for it is not caused by the employer's neg- ligence This decision while denying the employee i preserves an action at common law for damages 4 a right of recovery where the employer's negli i gence is the cause by giving the employee the bene- fit of compensation under the Act Disposition of the court to expand the Workmen's Compensation Act by construction so as to cover all possible situations is not in evidence in Atlantic Coast Shipping Co. et al v Stasiak 158 Md 349 148 A. 452 1930 where compensation was denied the claimant who developed a hernia as a result wi lifting tin plates onto trucks The court concluded that he did not suffer accidental injury for *** *** * there was no evidence that the injury was caused by any unusual strain or by any condition not incident to claimant's employment In Gunter v Sharp & Dohme et al 159 Md 438 151 A. 134 1930 compensation was denied the plaintiff who was cmployed by the defendant to mix bichloride and cyanide powders having been so engaged for three years preceding the disability and for three years before that in making other kinds 1 powders Compensation was denied on the ground that claimant had not received an accidental injury within the Act In Cambridge Mfg Co. v Johnson 160 Md 248 153 A. 283 1931 the claimant was employed as the foreman of the lefendant in mixing poultry and dairy feed from September 1923 to October 1928. The operation of mixing the feed caused the air to be impregnated with dustat times quite thickly The claimant developed pulmonary tuberculosis tuberculosis which the medical testimony showed was exaggerated by the inhalation of dust during his employment The court refused compensation on the ground that this was not an accidental injury within the mean- ing of the Act In Sinsko v A. Weiskettel & Sons Co. 163 A. 851 Court of Appeals 1933 the claimant sought to recover compensation for employed the death of her husband who had been blaster by the defendant The deceased as a sand a small room to clean rusty tubs with the sand There was only one fan on the side and anyone working there always in- haled a great deal of dust One doctor for the claimant testi- fied that the decedent died from pneumonoconiosis or occu- pational disease The court denied compensation under the Act saying 170 #*9all the evidence shows it was an occupa- tional disease and there is no evidence of negligence on the part of the appellees Bold face type not in text In Schemmel v T. B. Gatch & Sons Co. 164 Md 671 166 A. 39 1933 which involved the right of an employee to compensation under the Workmen's Compensation Act for a cerebral hemorrhage resulting in a disability the court in holding for the claimant reviewed and reaffirmed its definitions of occupational disease and injury as follows An injury may be said to arise out of the employment when it results from risks or perils pe- culiar to and inherent in the nature and scope of the work and its obligations Schneider Workmen's compensable Compensation Sec 262 but it is only under the act where it is accidental in character So an occupational or industrial disease resulting from conditions necessarily incident to the occupation while it may be said to arise out of the employment is not compensable because it is not accidental Gunter v Sharpe & Dohme 159 Md 444 151 A. 134 while a disease even though gradual and insidious in its approach which is caused by casual unexpected conditions in the employment which increase its hazards but which the employee is not bound to anticipate not only arises out of the employment but is compensable because it is accidental *** *** *** citing cases Bold face type not in text Hence it appears that the Maryland court adheres to its unique construction and holds that disease caused by negligence is accidental injury and therefore compensable under the Workmen's Compensation Act As previously stated such right under the Act bars a common law action if the employer.com- employer.complies with the Act II Other Statutes 1. Article 89 Sec This section is quite long and should be consulted with respect to the character of ventilation required to carry off gases and provide adequate fresh air This section provides certain minimums and also requires compliance with any order of the District Mine Inspector as to the furnishing of fresh air in excess of the statutory minimums Sec This section defines gas as used in the mining statutes The foregoing sections do not place any statutory obligation 171 upon the mine operators with respect to dust hazards 2 Minors 100 Sec This prohibits the employment of any child under 16 years of age in a long list of enumerated industries including particularly those where dangerous and poisonous acids are used and occupations causing dust in injurious quantities Sec This section prohibits the employment of any child under 18 years of age in certain classes of employment including particularly the operation of emery wheels or in operations where any abrasive polishing or buffing wheel articles of the baser metals or iridium are manufactured 3. Dust Statutes- There are no other statutory provisions with respect to workshops and factories creating any specific duty on the part of employers in regard to dust elimination II Common Law Liability The right of the employee to recover damages for a diseased condition caused by the negligent acts of the employer is dis- cussed at some length in a preceding section of this chapter dealing with construction of Workmen's Compensation Acts The conclusion is there expressed that the common law right of recovery for disease due to the negligence of the employer existed in Maryland prior to the enactment of the Workmen's Compensation Act and that it still exists where the employer fails to provide compensation as required by that Act There is further indication that the Maryland courts recognize the duty of the employer to furnish a reasonably safe place to work and that air pollution from dust gases -- otherwise is a factor which the employer must take into consideration This is indicated by several decisions few of which we will cite as illustrative State v Flannegan 11 Md 481 74 A. 818 1909 In this case damages were sought by an employee who was overcome by poisonous gas while excavating a trench for a sewer Although the plaintiff did not recover damages the court recognizes the usual common law principles of liability in this de- cision The case of Victory Sparkler & Specialty Co. v Francks 128 A. 635 is discussed at length in a preceding section of this chapter IV Miscellaneous Matters of Interest L. Statute of Limitations Maryland Code Article 57 Sec 1. provides that actions for 172 personal injury from negligence must be brought within three years from the time the cause of action accrued Article 67 Sec 2 requires that actions for negligence caus- ing death must be commenced within twelve calendar months after the death occurs 2. Rules Under the Workmen's Compensation Act the Comision Commission is authorized and directed to formulate rules and regulations for the safety of employees and the prevention of accidents in oc- cupations covered by the Act Copies of such rules if and when adopted may be procured by communication with the State Industrial Accident Commission employments are excepted but the exceptions may be con- | sidered immaterial for the purposes of this survey | As to the occupations and employments enumerated in para- graph 32 the Act is compulsory paragraph 14 and by joint election of employer and employes those not coming within the occupations enumerated in paragraph 32 may become subject to the Act The compulsory character of the Act consists in the requirement that every employer subject to it shall pay or provide compensation according to the schedules of the Act for disability or death of the employee resulting from accidental personal injury The liability of the employer so prescribed is exclusive paragraph 14 In other words the employee has no rights against an employer subject to the Act except such rights to compensation as are prescribed in the Act But this rule does not hold if the employer fails to secure the payment of compensation as required by the Act If he does so fail to secure the payment of compensation the injured employee or in case of death his legal representative may at his option elect to claim compensation or to maintain an option in court for damages i under these circumstances the employee resorts to the court an action for damages the employer is denied the common law defenses of fellow servant assumed risk and contributory negligence In so far as occupational disease is concerned therefore the employee can recover only the compensation specified in the Act when the occupational disease is compensable at all but if the employer fails to secure the payment of the compensation the employee may then pursue any common law remedy which he otherwise otherwise would have had 4. Court Construction In Victory Sparkler & Specialty Co. v Francks 147 Md 368 128 A. 635 44 A.L.R. 363 1925 the plaintiff a young girl brought an action at law for injuries sustained by the gradual contraction of phosphorus poisoning resulting from the inhalation of fumes and gases wrongfully and negligently permitted to be collected where she was employed by the defendant in making fireworks She was exposed to such fumes and gases during the years 1921 1922 and 1923. 9 The employer's defense was that her disability was an injury within the terms of the Workmen's Compensation Act that her sole right of recovery was the right of compensation and that she could not maintain this action for damages The plaintiff was given judgment in the trial court for 22,500 168 168 On appeal from that judgment two issues were considered by the reviewing court ) Was the employer liable at common law to the servant if her injury was not compensable under the terms of the Workmen's Compensation Act and 2 was not the disease of phosphorus poisoning an injury outside the pur- view of the Act In answering the first question the court discussed at length the recitals in the preamble to the Workmen's Compensation Act and the peculiar wording of several sections and concluded that all rights of employees to recover against the employers were merged in the Workmen's Compensation Act that it provides the exclusive remedy and that no right of common law recovery longer exists for any purpose against an employer in Maryland who complies with the Act By inference at least the decision recognizes that a common law right of the employee to recover for a diseased condition which was due to the negligence of the employer did exist exist prior to the passage of the Workmen's Compensation Act It may therefore be assumed that the employee still has such right of Act action for common law damages under Section of the if the employer fails to secure the payment of compensation In answering the second question as to whether or not the disease of phosphorus poisoning was compensable under the Act the court so defines occupational disease as to limit it to disease which arises from causes incident to the occupation or calling which has its origin in the inherent nature or mode of work and which is the usual result or concomitant If the discase is not the customary or natural result of profession or industry per se but is the consequence of extrinsic condition or independent agency in this case employer's employer's negligence it is not the court said an occupational disease at all in an accurate sense it is then an accidental injury ie an injury occurring through the accident or chance of the employer's negligence This reasoning brought the disability complained of within the Workmen's Compensation Act and limited the claimant to the compensation provided in the Act The judgment was therefore reversed and she was denied any recovery except compensation NOTE It will be observed that the definition of occupa- tional disease adopted in the above case is the one identified as Definition No. " in Chapter 3 of this survey For occupational disease so construed the employee has never had a right of action at com- 169