Mutual Chemical Co. v. Thurston

Horney, J., delivered the opinion of the Court. The sole question on this appeal is whether there was sufficient evidence to support the findings of the Medical Board for Occupational Diseases (the Medical Board) to the effect that the claimant had sustained a compensable occupational disease—from long exposure to the inhalation of chrome products—which resulted in permanent total disability. The Workmen’s Compensation Commission (the Commission) affirmed the Medical Board, and when the Superior Court of Baltimore City affirmed the Commission, the employer and insurer ap ⁸⁹ pealed, claiming primarily that the pulmonary dust disease the claimant had contracted was not a hazard characteristic of and peculiar to his employment. James A. Thurston (the claimant) was first employed by the Mutual Chemical Company (the chemical company or employer) in February of 1925 and continued working until July of 1930.

He was re-employed (after the great depression) in August of 1932 and worked continuously until December 21, 1956. During the times he was employed by the chemical company, he had worked as a crane operator, a leach plant operator and a residue dryer operator. In whatever capacity he worked he had been continuously exposed to chrome in the form of fumes and dust. In 1953 the claimant began to lose weight, to cough and spit blood.

He was examined by the company doctor and was referred by him to Dr. John E. Miller in September of 1953. From then on—in 1954, 1955 and 1956—he was re-examined and x-rayed from time to time. Among other things his lungs were broncho-scoped twice. In October of 1956 an x-ray examination revealed some infiltration in the right upper lung field and bronchogenic carcinoma was suspected.

Further studies were made and in January of 1957 it was recommended that an exploratory thoractomy be performed. The presumptive diagnosis was lung cancer and a secondary pulmonary infection. The operation was performed and, because of the poor condition of the lung, it was removed. During the course of the operation the claimant suffered a cardiac arrest but was resuscitated.

In March of 1957 another operation was performed and six ribs were removed. When the claimant filed his claim alleging permanent disability—by the removal of a lung due to malignancy—the employer and insurer contested the claim and raised issues as to whether the claim was compensable, whether the claimant sustained an occupational disease and the nature and extent of the disability suffered. Testimony—mostly medical in nature—was taken before the Medical Board on four different dates between December of 1957 and March of 1958. The claimant and a fellow worker on his behalf testified as to the types of work the claimant had ⁹⁰ performed and the manner in which he had been subjected to chrome fumes and dust.

But before this testimony had been completed it was admitted—in a colloquy between members of the Medical Board and counsel for the parties—that the claimant had been long exposed to fumes and dust from chrome. Apparently, the fact that the claimant was permanently disabled was not disputed. During the course of the hearing, the employer stated that because of statistical data—and despite the absence of medical evidence of a causal connection between bronchogenic carcinoma and the production of chromium chemicals—it had voluntarily paid workmen’s compensation to each of its employees who had developed either perforated nasal septa or bronchogenic carcinoma. In fact a claim by this claimant in 1951 for a perforated nasal septum was compromised and settled by the parties.

In the instant case, since the claimant had not developed a bronchial cancer, as had been anteoperatively diagnosed, the principal remaining issue for the Medical Board to decide was whether the claimant had contracted an occupational disease within the meaning of the statute. Dr. Miller, the operating surgeon who removed the right lung, and who had suspected the claimant had a bronchial cancer before the operation, subsequently diagnosed the condition as chronic fibroid pneumonitis. He believed that exposure to chrome was not a factor in causing the pneumonia and that the claimant’s condition was not related to his employment. According to Dr. John E. T. Camper, he had received a written report from Dr. Miller to the effect that the claimant had cancer of the lung, but such report was not offered in evidence.

Dr. Russell S. Fisher, the pathologist, diagnosed the claimant’s condition as pneumonia and inflammatory bronchitis. He found no evidence of cancer; nor could he establish tuberculosis. He had not seen this kind of organized pneumonia in any of the lungs of other chrome workers that he had examined and saw no reason to claim that the pneumonia was connected with his employment. Dr. Anna M. Baetjer testified that five years of effort failed ⁹¹ to produce lung cancer in animals which had been subjected to mixed chromate dust supplied by the chemical company.

She acknowledged, however, that exposure to chrome could cause lung damage if it was in an irritating form and the tissue it came in contact with was susceptible. Dr. Hugh J. Welch, a specialist in diseases of the chest, attributed the cause of the claimant’s condition to “chronic environmental irritation leading to a chronic infection of the nasal and bronchial respiratory system * * * causing such a degree of hyperplasia that he lost his lung” and stated that the claimant had a “fibrous right lung, acute and chronic pneumonitis with chemical origin.” He had seen only one other case definitely comparable to that of the claimant. He stated unequivocally that there was a relationship between perforation of the septum and pulmonary changes. When he was asked whether a person exposed to chromium irritation over a long period of years would get the kind of disease the claimant had, he answered, “It would be a rare one that wouldn’t.” Dr. Edward F. Cotter, another chest specialist, who had made a report in the hospital record, but did not testify at the hearing, recorded that there had been “wide-spread bronchial changes * * * in the form of a chronic bronchial inflammatory reaction with squamous metaplasia of the bronchial mucosa, bronchial edema, ulceration and stenosis with extensive organizing pneumonia” and then added “one would have to consider chronic chromium irritation as a likely contributory factor unless it can be shown that his exposure was minimal.” When Dr. Welch was asked if he agreed with Dr. Cotter’s report he stated that he did.

Dr. Wilhelm C. Hueper, chief of the environmental cancer section of the National Cancer Institute, after reviewing the pathological report and the reports of several other doctors as well as the medical and employment records of the claimant, likewise diagnosed his condition as “chronic fibrosing pneumonia with development of localized emphysema, both of them probably developing on the basis of chronic ulcerative bronchitis caused by the inhalation of corrosive material.” He was of the opinion that the condition of the claimant was “most likely” due to exposure in the employment. He further testi ⁹² fied that, according to statements found in medical literature in this country as well as in Europe, bronchitis, as well as pneumonia and tuberculosis, is excessively frequent among chromate manufacturers. Together with Dr. T. F. Mancuso, he had performed experiments in chromate plants and together they published an article 1 in which it was stated that chromate workers developed a fibrosing pneumonia. In a letter dated February 10, 1958, Dr. Hueper stated that it was a statistically established fact that chromate workers have an excessive frequency to bronchitis and cited several medical authorities for his statement.

He further noted, with respect to the occupational origin of the pneumonia, that epidemiologic investigations of workers in seven American chromate plants showed that such work groups definitely had an excessive rate from all forms of pneumonia, and that it had been established that chromate manufacturers develop a fibrosing pneumonia. He concluded the letter by stating that “the bronchial and pulmonary changes which developed in the * * * [claimant] during his employment in a chromate manufacturing operation are with a high degree of probability attributable to the toxic and corrosive action of specific occupational factors upon the tissues involved.” The witness disagreed with a public health service bulletin to the effect that pulmonary markings suggestive of fibrosis were not important among chromate workers; nor did he agree that persons exposed to chrome do not have significantly more respiratory illness than the general public. This was the first case, however, that he had first hand knowledge of involving ulcerative bronchitis due to chrome exposure. In another article, 2 written by Dr. Mancuso alone, he stated that “workers exposed to inhalation of chromate and chromite dust may develop various acute and chronic injuries to the tissues of the respiratory system, including ulcers and chemical pneumonitis.” On this evidence produced at the hearing ■—• though in greater detail, of course—the Medical Board found that the ⁹³ claimant had “some reaction to his lungs from his long exposure to the inhalation of chrome products,” and then added “[e]ven though effective testimony was given by capable people to refute the irritative effect and ultimate lung damage from the occupational exposure, there is still strong indication that the chrome products were of great influence in the claimant’s illness.” It further found that the claimant, who was disabled by the operative removal of one of his lungs and its sequelae, was entitled to an award for permanent and total disability.

While the findings of the Medical Board are not as specific as might be desired, there is no doubt that it found as a fact that the “reaction to his lungs” and the ultimate lung damage suffered by the claimant was due to or was greatly influenced by the irritative effect of the long occupational exposure to